invocation of judicial a stoppel when there was no factual legal basis for it in fact all four analytical pronk advised against it my argument it can be put in one sentence very simply because m ashmore clearly and repeatedly disclosed the existence details and procedural posture of this action to the trustee in bankruptcy judge and because the trustee and bankruptcy judges carefully considered the action before determining to permit ashmore to prosecute the conclusion twice in two thousand and thirteen and two thousand and seventeen ashmore never took in the bankruptcy court never adopted inconsistent position the action did not exist and in fact what schedule that was scheduled it was on the schedule that's the nominated the statement of financial affairs of the sofa  financial affairs but it's not denominated in the schedule b and and the case law is seems to be clear that when it is incompletely schedule an argument to you on the second order is fact that every decision the bankruptcy court made was made precisely with this action in mind that there only two decisions made in two thousand and thirteen the decision to deny motion to dismiss the bankruptcy which was made precisely because of the existence of the action and the fact that the trustee and the bankruptcy judge thought that it could provide a settlement to creditors and then a few months later in september two thousand thirteen the trustee having investigated the action and having decided that the case was not going to settle on couldn't and having not been able to find a lawyer to prosecute the case told the district court that mr ashmore could prosecute the case disclosure and in fact in two thousand and sixteen the bankruptcy court judge papillion actually found that the k that although the action was not listed in the sofa it was listed in the schedule b as listen in the sofa and it was there after repeatedly disclosed in the in the case and there was a sense of discovery there was an extensive discussion at the three forty one hearing here the only reference to this case was the lawyer saying i have a conflict as i have a deposition in the south of new york there are two certifications by the trustee as well as a certification by mr ass more sworn of disclosing testified about the action that the three forty one creditor is meeting but even even if you disregard that your honor he wrote a letter to the trustee shortly thereafter in which he enclosed the complaint and fully describe the case he then went to a hearing before a bankruptcy judge stern and gave a lengthy disquisition about the existence of the case its procedural posture and the claim morgan or the bankruptcy judge at a hearing about the nature of yes and the trustee his lawyer says to the bankruptcy judge you know if there's going to be a set of looks like there's going to be a settlement so let's not dismiss it let's keep the case here and three months later the bankruptcy bankruptcy trustee having not found a way to prosecute it having realized been told that it's not going to settle quickly closes the case and tells the judge tourist is the most significant development it seems to me but it was not a no asset case well it's your client was still preserving and advancing this asset i don't know why the trustee would do that i don't judge i don't want to trust you would do on a young and a discharge as a result of that yes he did but the but but the but the trustee reserved an interest in the recovery for the benefit of the the agreement was that if there was a recovery at the end of the case then he would not claim that that had been abandoned and he would but he did claim that if he claimed it because the it judge what he what he what he did was claim for the purposes of standing that the action had been abandoned to him and in fact it had been abandoned to him because the trustee had told the district judge that he could prosecute it that he had standing to prosecute the case and the case could proceed outside of the bankruptcy court jurisdiction  bankruptcy judge was apparently the trustees doing that the somewhat peculiar arrangement was the trustee is doing maybe that's not to be able to mr rational but there is a way of looking at this record  is is different right i mean mr ashley more didn't put it in the right place on the schedules in the first place and there is some dispute about what happened at the three forty one i'm not sure on what judge torres was relying in rejecting the testimony of the only two people who were there and perhaps the other side can like that but at least she did find out that it was not really disclosed at the three forty one meeting and then there is the letter which to some degree is kind of expected by the trustee who says hey wait you said something about a lawsuit tell me more and it's moore was not in fact entirely forthcoming in the bankruptcy proceeding and then add into this some of the things that it was referred to that when it comes time for the trustee to intervene it misreads more takes the three forty one and just based on the disclosures that he made and the fact that the that the bankruptcy trustee and the bankruptcy court knew all about the action before they made any decision  case in other words the fact that the case for had been fully disclosed and and that all their decisions in the case including the two thousand and seventeen abandonment which i don't think should be lost sight of where it goes back to the bankruptcy court as your honor has suggested and i ozzy and the bankruptcy court orders an abandonment again after notice and hearing that the this factual record of disclosure both in two thousand and thirteen correctly or not i don't know that there had been eight hundred thousand dollars of them yet when my and my basic argument is how can when when when the when the the proceed debtor has disclosed it in the  has as written about it and disclosed it orally throughout the case how can the bank how can the finding below that he took the position in the bank records of the action didn't exist survive and and more importantly how can we how can the the decision that the bankruptcy court somehow adopted his position ever realize that it did didn't exist there was no lawsuit when the bankruptcy court was fully aware that there was a lawsuit and was assets when the thing was reopened they were only fifty thousand dollars fifty eight thousand dollars worth of claims yes because that's all there was that's all the claims that all the creditors filed it only had fifty eight thousand dollars in debt and then what he's doing how he managed to pay with what i thought he had zero s because what he did was he borrowed the money from the litigation funder in just said that is the more actually you know all the creditors including the ones who did not submit quite well i'm not saying that he paid all the creditors i'm saying that for example there is evidence the record there was an agreement with his former wife that resolved her claims which were a substantial piece of it so if you remove those in your remove the student loans creditors never filed quite that absolutely we don't know and i don't know what we can learn from this record as to why that happened i think that well of itself for the items i mentioned but what is clear from the record is that no creditor a potential creditor of the two hundred fifty thousand listed ever came into the bankruptcy court and said i have a problem with what happened and i want to file a claim that aren't you know to do subsequently when the bankruptcy is reopened the creditors all get notice of what's going on some of them file claims some of them for whatever reason you know that that's correct and and the irony is here if you look at the balance at how the equities tip it in this case which is what the clarke decision says needs to be done all of the all the allowed creditors claims haven't had been arranged to be paid so no creditor is has lost a dime is one hundred percent when you think they are arranged to be paid my understanding which may be incorrect because i'm not sure i understand all and was that the people who filed claims are supposed to be paid out of the proceeds of the last no no they were already paid i have the founder of the litigation had them person who actually loses that is correct and that's why my basic argument to this court is that the balance of equities tips overwhelmingly in favor of mr ashmore because it gives of something that i thought was an argument from mr moore was that the only people the people who would lose would include the creditors who filed claims they were not not so they all creditor no creditor loses a dime the in the no order of the minutes reminded us you know where you can use them later obviously jump in on a slightly different question clearly it's abuse of discretion and clearly the district court judge whether it's larceny and the hardest judge lynch mentioned or fast and loose the district judge was troubled whether rightly or wrongly put that aside but one of the things she cites to is the clean energy in the fill your of your client to list that asset in his bankruptcy in any way you call it a red herring in your brief i guess i'd ask you why is it a red herring well it's a red herring because it doesn't have anything to do with whether this case would be prosecuted but more important to the not judge is that mr and that company well had lost its had no value ok but in june of thirteen in your in the letter to the trustee you wrote there appeared no wind in sight in the whistleblower action and you know basically making it sound like that's not going to have any value why is it any different for the letter that ends up on the docket which is a very strong point for you i think but in that letter he basically makes it sound like this was a lot of cases no and cited it was kind of saying i don't know whether it's ever going to be worth anything no no i don't i don't think that was the thrust of the letter at all he he's saying that the case is not it doesn't appear to be it's going to going to settle right away i think is what it more questions that yeah i know he never he never represented that this case had had no value and in fact the complaint that he gave to the trustee had in the dandan clause of at least one point two million dollars so he never he never represented this case was worthless or you know and he's been fighting here for seven years on the proposition that the case is valuable and and in fact judge who has denied summary judgment on the main claims so we're hoping that that will be able to get a trial and clark this circuit held it's an abuse of discretion and review and that means in a quote clark that the decision below cannot be located within the range of permissible decisions that's law that's exactly right and abuse of discretion review requires proper application of law and not clearly i'm doing it backwards not clearly erroneous factual fin one hearing he did say that he said how is it that there's no evidence if we have a certification from a trustee that we have something from the get or how is that no evidence let me let me go back and explain why she said that first of all she six o five you said no creditors ever appeared at a three forty one hearing this was rescheduled so i take her at at that and that word now that she may she she could be referring to the notion that he was at the trustee he was informed at the three forty one hearing that this lawsuit existed we don't have any qualms about saying that he informed the trustee that the lawsuit existed he did it in writing in june i don't have any problems with entitled though if he told the and nobody else bothered to show up at the hearing but the trustee whose job it is is usually duty it is to protect the interests of the creditors says that he was aware he was aware  at the time why does the fact that no creditors showed up to make a difference well i think they think i think judgment you have to go back to the basic principles of the bankruptcy system requires notice to the court of an asset to the court to the trustee and to the creditors it's not enough to rely upon the statements to the trustee and we've i'm not a bankruptcy expert it would not surprise me and maybe you know more and can tell me more if it's not uncommon for no one to show up at three forty one hearing no creditor to show up where it's a relatively small bankruptcy well that depends on what the creditors have been told in this case they were told this is a no asset case but wait wait wait they were later told it was a no as that case i don't believe that's true i think that they were told initially by the bankruptcy court that this is because of the schedules yes but what about us why you know i mean i understand the point and i understand very well since i had to deal with this and i as the and then again in the  that if we're talking about is there an abandonment as a matter of law the failure to list something on the schedule d is important at the same time as the third circuit found in kane if particularly a pro se bankrupt lists on the papers that are filed but puts in the wrong place the existence of a lawsuit it's a little hard for me to understand how you can just say that the creditors have no knowledge of this creditors only look at one page of the filing granted they're not required to look at the rest your honor i think i think you're reading the disclosure obligation very narrowly here it seems to me and judge jacobs you said this in the p p illinois two years ago that if someone attempts to  obtain a claim that's not been disclosed properly and i know that that's the question here they obtain an unfair advantage over the creditors it's not just a question here i would say judge lynch of did he put it on schedule b assets and liabilities if you look at the summary of schedules the summary of schedules sets and all you have to do is look at it i have twenty eight hundred forty dollars eighty six i have twenty eight hundred dollars in assets three hundred thousand dollars in liability he says this multiple times throughout the petition he says i have less than fifty thousand dollars in assets and if you are if you are a creditor you look at that you get a a a letter firm or notice from the court with a filing that says this is a no asset case don't file proof of claim there's no you know people do not come to the three forty one meeting and if it's not disclosed look  enough is the answer though that that is not curable in other words i don't know the latest subsequently there is a very fulsome disclosure as i read it in the june letter and that letter is put on the docket then there is testimony before the bankruptcy court so at that point both the bankruptcy court and the trustee are fully aware let's assume that it's not that's not enough because even though it's there on the docket for the creditors the creditors weren't properly made aware let's assume that it is at mr s more as a door that the bankruptcy court for whatever reason let's assume that it's mr s morris fault that the trustee has this side agreement that doesn't quite yet disclose nevertheless there after the whole thing is reopened it and the creditors are given notice of everything that happens and are invited to file claims four years after the fact or years after the fact ready time in time that everyone who needs to be made whole is in a position to be made  or not i don't think that that's even i don't think that's fair and that for this reason you're told twice in two thousand and thirteen this is a no asset case during the pendency of it but then you're told it's being reopened because it turns out that wasn't so or years later  his claims include new york city parking tickets i mean he was very careful in going through schedule left and saying i all of these people money you would take all of those small debts and in you were told i don't there are no assets in this case you don't sit around and say all right four years later i get a notice and i looked and said whoa wait a minute what did this guy owens we wrote off those debts that's that's why and judge a judge creditors who had a right to consider the claims during the bankruptcy proceeding not when it was reopened four years later but during the bankruptcy proceeding why is that she  let me answer that because it's something that judge lynch raised as well here's the sequence of what goes on here there is a scheduled three forty one meeting that's supposed to take place in may no creditors appeared  well yes they did get notice of that nobody shows up right on june twentieth ok a month later the trustee sends a letter to mr ashmore requesting that he provide an explanation as to the intervening matters there were acquired dismissals right she's not going to write that if this was disclosed at the meeting but let's put that on the side ashmore then sends a letter to the trustee the trustees counsel then says me back up to that because here's another sort of peculiarity about this case what mr ashmore is doing at that point is trying to get out of the bankruptcy proceeding he's asked he says and i think that the intervening whatever he's now thinking he says i don't want to be bankrupt anymore i want to go ahead and do what i think whatever i'm going to do to be able to pay my creditors i want to bail out of this hat how it was that and then the that we want to keep that us that we now know about and use it for the benefit of the creditors but i'm having trouble understanding why then when the district court says no i'm not dismissing this i'm going to leave this in the hands of the trustee  why why is mr ashmore taking a position to be construed as taking a position i want to discharge in bankruptcy and i have no lawsuit and the conclusion is he gets what he wants a district in bankruptcy after he's also represented that he has no last when he's told the bankruptcy judge i have a lawsuit and please let me i don't want to be i don't want to destroy it and bankruptcy well let me let me let me let me explain he explains in a moment of candor he explains to the bankruptcy judge on the record sworn testimony why he wanted the lawsuit this is a one ninety five and i'm going to quote i don't want to forego my attorney's abilities to litigate this in my best interest he wants to keep it firm self as he does he wants to he thinks this lawsuit is worth enough money to cover his debts and still make money for himself and the concern that the bankruptcy for us is likely to sell it out at the cheapest level in the quickest level to pay off the people of the question he is worried about we it's not his stock and the bankruptcy court says you know if that happens you can come back to me and  object to what the trustee wants to do to protect your own interests on the jets not his at that point it's a part of the estate it would be his it would be his if the bankruptcy is with ron which is what he wants well of course he could he could but the judge didn't let him do that stern said it's not in the best interest of the estate it's within the estate at that point the creditors but this is a classic case where the creditors don't know anything about this t there's exactly what yours of course are and if it is if the suit had been listed on the schedule be with the schedule be naturally require that it be estimated the value of it be estimated yes your honor and it would reflect with the value was yes was there an estimated value no it wasn't there was no it's just listed as one of four and frankly if you look at the saw if i forgot what page it there it's there are a bunch of lines it's very hard to figure out what's what's what in that  all forms a complicated question is did the sofa provide a space for estimating the value no it does not it does not and it was not provided it was not provided and the schedules are very clear and that's the reason book five twenty one a the bankruptcy code is very clear you have to file a schedule of assets and liabilities a schedule of income and something else and third a statement of financial affairs those are different things  it's well you know i understand that but let me let me go back to let me commend it's not just that they happened to clean up something that is making more explicit something that was implicit there are cases all over the country raising exactly this issue right now there are cases in several circuits that raise this problem that's right have any of them held that something that is disclosed on the so and not disclosed on schedule inform the creditors their assets in been discovered and who requested proof of claim that's the trustee when she or he i can't remember which it is well it did not then it happened four years later after this litigation after judge lynch after it does file a letter that talks about the laws it doesn't ask for claims to be filed but it says there is this year it says it says then if if if aisha's creditors who were going to go beyond the schedules gombe on advice by the bankruptcy court that there are no assets here and are going to say ok so i want to know everything about this particular guy even no money even though there's no money in it and there's no mention of of this thing even though there's no money that's an end it and that's the point about the four years later by the way how would how would someone as to make the value of this  of the time of the bankruptcy filing i think you just going with a million dollars because that's what i asked for i think it's the end them i think that the creditors are entitled to look at then i mean look if they're going to look at mr ashley moore's letter pursuant to your  that's what eight minutes of all they'd see yeah all they'd see is all they'd see is that so is one point two million dollars in an asset that hasn't been disclosed and they're entitled to notice of that during the bankruptcy and i want to say we're going to benefit from this of course or your clients who have not been defrauded in any way have not been disadvantaged in some way by this and are getting out from under a lawsuit which has at least enough merit that it survives summary judgment a that at least somebody thinks there was a substantial settlement offer and i don't know that we can rely on that we know what that fact is but you guys get off not having to face mr ashe moore's law suit the creditors have either all been made whole or they have and then they are the ones the ones who filed the claims are the ones who are disadvantaged by by this well let me that's the outcome that we i don't think it is i think and i think here's here's i think here's the flaw in that reasoning which is we first raised these issues when when praskovya got involved in the case we raised these issues i called my friend mr herb's who i've known for many years and i said did you tell trustee about this settlement conferences we've been having you somewhat cagey so i related to the trustee and i said i said to mr herbst i'm going to tell her what's going on don't you think you have an obligation to tell her what's going on he said  so i wrote a letter to her it's in there it's in the record and i said it but much not in the record and the letter is in the record i understand that but the what prompted the letter doesn't really matter especially from the point of view of the of the creditors well from the point of view of the creditors and your honor that's exactly right and i think you have to look at this from the point of view of the creditors if what you said in b p peel and illinois is to have any meaning the creditors have to be informed of assets truthful complete accurate statement of assets during the bankruptcy proceeding so that they can make decisions about this and let me go back and with one mention here which is this letter agreement with the trustee was the trustee it was it was the trustees duty not to enter into something like this in the first place look it judges says going to lose his lawsuit against your client and because the trustee maybe didn't do what she should have done this case look his fault it is it is his fault in this sense and that is that letter should have been disclosed at the time of the bankruptcy this is one of many things that were done that was done wrong in this bankruptcy proceeding no notice not telling the creditors of the of the lawsuit this was all hidden this not amending his is his petition for four years not disclosing clean addison all of these things that she said are all incidents or they are evidence or consistent with an intent to conceal all of those things that are in the record look any one of these standing alone maybe we wouldn't be here if he had amended his petition when it was disclosed to him that stuff and that's why judge doris amended the very end you seek for years i don't know not even at the end of the bankruptcy proceedings it had to be reopened and it was reopened over his objection after your honor wrote the opinion that said we have no jurisdiction over this over this lawsuit only after that does mr ashmore say oh i better disclose to the creditors that i have an asset here and i also have my clean addison claim which i forgot question you've argued it's moot it certainly looks moot i just want to be sure if if you think it's moot that means you won't ever raise that ruling in any proceedings at the district court if it went back in other words in closing argument ask for judicial notice of the ruling in any way anything about it as he knows how to protect himself a trial will deal with that then you meant no no i mean it's moot for the purposes of this of this appeal i think i think that that's that that that that that's that's a question thank you very much in this case he disclosed that letter agreement and disclosed the fact that it was and had never been filed and the record of the bankruptcy court for two years they knew everything about this and they acquiesced in the aband they knew they knew they were the real question is in terms of administering the bankruptcy system in terms of assuring candid and open disclosure so people know what's what and what's available when th hire lawyers whether to follow suit and so on the question is whether the what the district court concluded were machinations by your client should prevent you from from pursuing this and we have put in our reply brief and pages seven to thirteen all the reasons why the district court's assertions or suggestions of machinations are untrue and a distortion of the record i don't want to take my remaining minute to recite them but there but there there i do want to say that the evaluation of the assets at zero in the bankruptcy petition is something that was automatically populated by the software the if he had listed this lawsuit at the time value of the lawsuit at the time of the filing of the petition he would have had to have said undetermined and undetermined would have had a zero valuation that's a little different and there is stance or judge lynch is question there is no case in this entire country in which someone who disclosed the and i'm glad mr a fast one conceded that fact there isn't one and there are there are six circuits that have essentially held that you can't there's no point looking at the complicated bankruptcy proceedings in six of the cases question is whether this district judge concluding that that your client manipulated things in order  order to get out from under two hundred thousand dollars how can you accuse per se debtor of trying to conceal the asset when he lists it accurately in the sofa if he was going to if it was going to if he was going to conceal it or intended to conceal it why would he listed as an employment claim apply middle lawsuit in the sofa with the right docket number and the court if you said a moment ago you said that if he had listed in the schedule b it would have been listed as having a zero that yes it would have been automatically populated by the bankruptcy petition software as zero he would have listed it as undetermined in the schedule b it would as it would not have changed debtor who who discloses the asset for the lawsuit fully in the software and doesn't list in the schedule b because of because it doesn't appear to him that the two definitions of the two places you to put it there apply to lawsuits that that about it in all of the critical decisions were made in this case thank you thank thank you thank you very much