of bankruptcy courts discretion in granting lifts a is not unfettered it is premised under the code by a finding of cause here or there was no finding of cause and the continued litigation that is per i believe that the bankruptcy court order was not based on any evidence ok it's not supported and therefore it was an abuse of discretion let me back out before we do that so before the motion for relief stay was filed there was a but i'm the one arguing that lists they was not appropriate the permanent injunction went into place but now for these three claims correct you are and we want to litigate these three claims that these three claims at the state court level are tied up with eighteen other parties and twelve other claims in the apple these responses they recognize and the judge agreed with that of the twelve claims and eighteen parties or only three pertaining to my debtor at the apple and it continues to exist so the question then is it more judicially at night call to deal with those three limited claims which are ready the subject of a pending adversary in the bankruptcy court we economical to force my client to have to litigate with seventeen other parties twelve other claims and the best the state court litigation well let's get let's be clear about well what is stopping the state court litigation it's not the automatic stay right because the i'm actually is gone in the discharge centered correct well at that time that it was acquainted i believe because this was the started last year and the district was sent to december rd of two thousand and eighteen so i believe at the time that the motion and everything was filed was it not and i think while you're looking at that just to be clear we we've got fifteen minutes of argument for both matters to that the state has terminated three hundred and sixty to see to see do agree i would agree that once the discharge was entered yes your honor but i believe that because it was granted not identical they are different your honor and in theory the anything number one the apple and apple e has already conceded in the underlying proceeding that only three claims and the court found that only three claims potentially would still survive that was the fraud that breach a fiduciary duty claims and the actual fraud claims those are couched in different terms in the adversary they are not identical in the state court proceeding your honor not only are they proceeding against my client the proceeding against the entity which is really house or one of the biggest issues i have is that ruth has or also filed bankruptcy on or as you know it's an entity and it doesn't receive a discharge that notwithstanding the same atlanta had filed a motion for a live stay in that case and that was denied so the state court action as it's proceeding right now cannot proceed as against ruth hauser because list state was not granted that matter was not healed yet my client has to go ahead and continue in position pretty well about judicial economy and why it was an abuse of discretion to allow the state court case to go forward were more asking you legal question it is about what it was that was stopping the state court case from going forward  i think we've now we've now we're saying we think there probably was no automatic stay or any more it terminated with a discharge or that entered and the question is what's the effect of the discharge order on claims that are have not that the discharge ability of which has not yet been determined before you have to remember the language of seven hundred and twenty seven b says that the discharge is subject to such an five hundred and twenty three agreed your honor and because there is a pending adversary action and the issues of discharge of delhi are core options that must be determined in the bankruptcy court proceeding forward in the state court form has no effect whatever that the findings i believe the bender case seven s where they said that if the argument is that it makes sense to proceed because there might be some future precludes effect on some findings of fact in that case the bender court said that's not enough for me to justify costs especially if there are other parties and there has to be nd chil discharge does the discharge completely bar the state court from considering the a two for six claims while they're pending in the bankruptcy court i am unaware of a case that says that bar is it this litigation that is contentious vexatious and expensive this debtor has complied with everything it was supposed to do it has received its charge and yet it is still compelled to litigate in this state court action which can y estate but it is your position that the bankruptcy court had at least the power to allow the state court case to go forward you just abused discretion exercising that power is what you're saying it is your honor and the basis is that based on the very short motion and the very short order the bankruptcy court end up with conclusory allegations that were not supported by any of the evidence set forth in the motion the motion was not supported by supporting the creditor was the state court action is far in advance we should allow them to go ahead and continue it would be better if your client if the bankruptcy court simply couldn't allow this to go forward good shake or absolutely  far in advance and should be allowed to stay in the form on the other hand in fighting the motion to dismiss the only affidavit or declaration provided it was a fifty six that declaration saying they needed more time to do discovery but you can't have it both ways if you've been litigat good morning honors my peace accord my name is amanda cross and i represent the absolutely dr douglas ross in this matter your honour's what we've heard today is argument that really is not based on the law or based on the record in this  case the order granting the motion granting the motion for relief from stay and the order denying the motion to dismiss should both be affirmed in your honour's mentioned a question about whether the automatic stay remains in place under three hundred and sixty two c to c it doesn't remain in place however i think to the extent that it does as to the claims asserted in the non discharge ability action position that the automatic stay with respect to the claims preserved in the non discharge ability action those claims are potentially subject to the automatic say and so that's exactly why we brought them we continue to assert the motion for relief from state to ensure that we have the ability to continue to pursue those in the state court action and the judge made its decision based upon the record and the law that is sure in that case and those that  was not an abuse of discretion the data has not pointed to any clearly erroneous findings that denver has not pointed to any erroneous conclusions of law the automatic the judge determined that cause existed for relief from the automatic say and considered multiple factors one which judge brand mention was judicial economy and judicially conyers critical here we've got a situation where state court action proceeded at the time for over three years now it's almost four years there is it ready for trial or has a trial happened it is indeed your honor ready for trial in fact calendar call is scheduled for the st week of december and the parties are discussing firm dates with the court for january trial so that and that as your honor just mentioned trial readiness is one of the factors to consider in determining whether relief from stay is appropriate the court considered that the time trial had been set and however the bankruptcy state came into effect into a trial could not go forward but the case was ready for trial and that's something the court considered with respect to the judicial where it was granted really for the state where there's no stay in effect but more importantly then is what does that do to the state quit litigation and your claim it seems to be kind of in a limbo period court you can't do that either because again they're subject to the ever say proceeding where the bankruptcy court has exclusive jurisdiction to determine a discharge sure your honor i appreciate those questions and i think there's a couple of responses  cited in our papers situations in which the automatic stay of relief from the automatic stay was granted where where there was a non discharge ability action and unfortunately i can't point to that at this very moment but there were cases or we identified where fraud claims were asserted in the state court action and the court allowed the state court action to proceed forward while the non discharge ability proceeding was stated i believe it under the argument with respect to a stay of an adversarial proceeding and essentially what the courts did is they said it made sense for the state court to proceed in making its determination on these fraud based cl fraudulent misrepresentation claim and of the discharge ability action will be say until that state court action is decided it's decided and then the bankruptcy court can utilize those findings under the dr ends of claim preclu preclusion to determine whether these these claims are indeed non dischargeable under section five hundred and twenty three and so i think given that courts have have made these determinations it makes sense that under section suspension subject to the automatic stay and that really from the stay is necessary in order to proceed with those and i think that on that basis the court ensure the correct decision and actually that's a good place to transition to the order on the motion to dismiss because the judge's decision i think both of those decisions go hand in hand the judge also decided that a stay of the proceedings was appropriate here and that was be again to serve judicial economy now that is also that decision is also subject to an abuse of discretion standard and judge not to go in that case made that determination that given that this state court proceeding had proceeded for several years he had the broad discretionary authority to say this adversary proceeding should be stayed pending final education of the state law claims the state law a state court judge in that matter is very familiar with the facts of the case familiar with the parties has made credibility determinations with respect to those parties and because of the as as a skunk stated because of the complexity of the case because of the amount of  co defendants who have not consented to jurisdiction the bankruptcy court judicially conny is best served by staying the adversary proceeding allowing the state court action to proceed forward since it is ready for trial and then adopting any findings and i appreciate that question your honor that's one thing i did want to mention as a threshold issue the fact is here this is an interlocking torrie order and we have a situation in which the debtor has admitted it's an  yet has failed to satisfy its burden of the stablish ing that this court has jurisdiction and in fact the debtor has had three separate opportunities to address each of these requirements for  order and has failed on every single occasion the debtor had the opportunity in its motion for leave to appeal it had the opportunity in its reply and it had the opportunity here today and has not addressed each of those elements that is required for this court to exercise jurisdiction over an interlocutory order and i think that's as a threshold issue is problematic because this court it's our position that this court does not have jurisdiction over that established any of those elements and importantly granting leave to review an interlocking tory appeal is the exception it is not the rule and it is only granted in very extraordinary circumstances this is not an extraordinary circumstance there's nothing about this case that that rises to the level of an extraordinary circumstance that debtor has not established that there is a controlling question of law as to which there is a substantial ground for difference of opinion and fact we cited to numerous controlling cases governing these this order on the motion to dismiss and the debtor hasn't even attempted to distinguish those cases like there's there's three aspects and i think that better would agree with you that the motion to  wouldn't we have the right to review their your honor i would submit that because it is it was a ruling as a part of a motion to dismiss and it's a ruling with respect to that motion to dismiss that th is without jurisdiction without granting leave to review it but that's what i would submit however even beyond that if this court were to review it i think that given that it is subject to the abuse of discretion and given that the court is same or closely related claim in two forum simultaneously the later filed action may be stayed under the federal courts for our discretionary power the court certainly had the discretion to sue a spontaneous stay that proceeding and i think it was the right decision ultimately it ends that and as as the dead are represented that the bankruptcy court is a quarterback woody and looking at all of the circumstances of this case it determined that it was appropriate to stay the adversary proceeding when there was a state court judge that had was completely familiar with all of the facts familiar with the parties and was able to make a determination without having to relive again all of these facts without having to conduct additional discovery and get the judge up to speed i think given the judge's broad discretionary power there it was appropriate and was not an abuse of discretion for the judge to stay the adversary proceeding to up hold in order lifting stay when the state a longer existed i think that that would be inappropriate i think that that order is inappropriate and somewhat mooted by the fact that the discharge is entered  well the stay in the discharge order would never apply in the bankruptcy court which is the forum in which it should be litigated but certainly but it's there should be no limbo period because it should be being litigated in bankruptcy court determination subject is going to make the ultimate does my district you're on a determination the only question is are the state court findings identical and if they are not want then going through this trial may get us no closer to the end of the rainbow and the letter does not flush that out for you your honor so if that was the judge's determination then there should be evidence in the record analyzing well these are the claims that are potentially nondestructive built not nondestructive only state court abuse of discretion because it must be supported by the record there was no evidence presented as to the elements of the claims as to the discovery that had been done as to the trial readiness of the state court case so when the bankruptcy court make that made that what i call a kneejerk reaction saying and let it be decided in the state court i don't think the appropriate analysis went through they didn't analyze the of that twelve total claims the eighteen other parties and how is that going to enter play with the very finite issues that we have under five hundred and twenty three that are pending in the at the sciri which we have no way of us it must ultimately end up there so to go through this is to prevent the