please the court charles dallara for the appellant there are many issues in this case and only fifteen minutes to talk about them so unless the court has some questions about the jurisdiction question i'll skip to the  but the bankruptcy court erred because as a matter of state law the cautions held an equitable interest in the foreclosed property on the date of the foreclosure that was protected by the three sixty tuesday addictions the jamieson's and the dawsons that there was somehow some gap during which time the dawsons were not on title to the property but at all times they maintain an equitable interest in the property they've been dealing with this fact for something like ten years at the time of the events in question eight years excuse me they have paid the bank thirty two thousand dollars on account of this loan and in one nine hundred ninety five they paid the bank another seven thousand dollars on the loan again in one nine hundred ninety seven  right no money exchanged hands and that person then put the dawsons back in on the property and they foreclose the bank from collect and get the money but he didn't foreclose the bank from collecting they didn't really do it that they didn't affect the bank's the dixons ultimately acquired that loan and that deed of trust which at all times was junior to the bank it's when the dixons foreclosed they made the credit get another words they said in exchange for getting the property and this is common in california practice instead of getting the property getting money we're going to take the property in our deed our debt is goes away there is no money changes hands are get goes away now now the property now what happens  that the directions were free to say ok we now have this property the property is in fact securely underwater because the bank in the first position is claiming there's more money than the property is probably worth but then so addictions are saying gee i don't think i'd be happy to unload this it's because it's has shown some interest in here the jamieson is there friends of the dawsons they're willing to give me something that satisfies me but this wasn't an issue that was litigated in the in the bankruptcy court there's no record developed on this point it w seems to me that regardless of what might happen here in this proceeding there's found to be more proceedings that sounds like factual i mean there have to be furthermore sealants and i'm wondering ultimately has to make any further factual determinations in the case needs this course the russian because we think they got it between the bankruptcy court in addition to court they got it sideways they got it sideways about i think the sort of go back to the district court or the bankruptcy court because until you tell the bankruptcy court which rules it's supposed to apply here not to be able to do that the principal rule at stake here and it's a question of first impression in this in this circuit is whether or not mr dawson is entitled to recover his emotional distress damages from the state that was proven namely the state caused by the unlawful detainer proceedings we have we have a seventh circuit district court opinion that was this century affirmed by the seventh circuit there is i now learned since i prepared for this our first circuit opinion that goes the other way and there's a bappa pinion which i call your attention and i will twenty eight letter last week that it's split decision that means that until we know what i just explained to you namely that we're contending that the number of things the number of things you need to be decided by this court namely whether the standard for civil damages under section three sixty two h violations what made any of the other things the only authority i've seen from that is again and that's an opinion from the baptists i cited to apparently there's a fifth circuit opinion that approves that procedure which cited instance and that's called cox cox and  nobody even is even if you accept the bankruptcy court premise that all these other issues should have been litigated we have twelve hours just filling the damages question with a summary judgment motion to record this we had depositions we had  with now and not only have we litigated on these issues for five years but washington mutual bank has had to deal with the dawsons for over eleven years during the course of their five bankruptcy cases and that is a long time particularly in individual cases but i felt it was necessary to bring the lakeshore village case to your attention because i thought it was somewhat parallel to this in that case the district court remanded the bankruptcy court decision on an attorney feel ward under section three thirty of the bankruptcy code which is the section that for compensation of state professionals and likewise we have this kind of situation here with where the district court has remanded it to the cast on that is whether in your view it would be potentially useful for the parties to make use of the mediation services you know i'm never opposed to that and i know our client would not be opposed to it because it's very reasonable we did participate in the northern district mediation program and we have to say i think it was maybe have they worth mediation in front of one of the judges in oakland and that really didn't go anywhere so i'm not sure i think our sticking point really is on the attorney for the issue candidly so i don't i don't know that it would be meaningful but i'm certainly open to it but i do think that the circuit can conclude geisha now by affirming the bankruptcy court on all of us fall aspects of its ruling i certainly think bankruptcy court did not err in regards to the jamison agreement that is an operative document and i would consider your view of where the district court where are your honor i'm not so sure that i was this is an issue that should be reviewed de novo in any way and frankly don't think it makes any difference based on th well that's that's a good question i don't know if the circuit would well it's the same thing that happened in the district court frankly because the issue was not raised in connection with the appeal as i recall from the bankruptcy court to the district court in regards to the basis upon which the district court reversed the bankruptcy court on the jameson agreement but you know i'm not sure and i don't think it really makes any difference on the record that is before the bankruptcy court interpretation of it is a market in contract although i think it's wrong i'm ok with it because i think we end up in the sane position and i know that appellant's have made a real issue about our motion for s judgment and how aggressively appeared to be in the underlying litigation that's not true we weren't aggressive we're trying to keep costs to a minimum and for that reason we did not fall across appeal and pride primarily because i don't think it makes any difference based on the record for this court whether it's a marketing contract or an option it just doesn't make a difference based on the record so i'm not concerned about it either way because i'm confident has commented that the bankruptcy court is going to make the right decision whatever framework it has based on this record this is basically a stable violation case even though there are a lot of other issues litigated this is basically state violation case and if we step back for a moment and look at it look at this record understanding that this is not an egregious state violation case at all  that in a moment so you ask your question i don't think it really makes any difference either way whether it's an option and agreement or a marketing contract the reason i don't think it makes a difference is that as i said based on this record the record before the bankruptcy court included the fact that the dawsons had filed five bankruptcy cases over the course of the five year period that shamus an agreement whether we call it an auction or a marketing contract they didn't comply within the thirty day period it's called for in the agreement you'll note that in that agreement it doesn't require the jamieson's to do anything except to transfer the grant deed title to the property upon satisfaction of those conditions within that thirty day period and you know one interesting thing that hasn't been discussed is what happens if they hadn't done that within the thirty day period could the jamieson's then have sold the property to somebody else without violating the automatic stay of mr dawson's bankruptcy case and i think the answer is yes because there's no interest there to protect and that's what the district court was saying because it was to you deal or about the bankruptcy case he said he would look into it immediately it was dismissed within two weeks mr dawson didn't have to take any formal action to resurrect that you know and a very significant summary judgment which was denied because the court found that the issues were not articulated clearly enough so she didn't know how to rule on the motions he denied it but in that motion i argued the siegel case  my only point is that this lawsuit was filed two years after more than two years after the last state violation issue was resolved remedied we can look all day long for bankruptcy cases throughout the entire country and i don't think we'll find one case where that's the situation actions are usually taken to cause the violation to be stopped or remedied no formal action was needed other than to quote the awarded what mr de lara referred to as minimal fees so when you take all of that into consideration that's why i don't think it makes any difference what happens on in regards to whether it's an option or marketing contract because the record here simply does not support the contention that this was an egregious spade violation when that kind of segues into the next issue which is the circuit on an issue of first impression on three sixty two leaks it was a while ago but i was here on an issue of first impression on the other side where we were asserting three sixty two lakes on behalf of  corporation you know and the important issue that i want to state now for the first impression is i think the court should either adopt the seventh circuit standard the district court standard in ohio or the stance in approach which was one taken by judge fry and a half on almost a year ago those are good objective approaches i think if we were to go by the fleet standard which i think is the first circuit standard that's too broad too wide open i think we're just going to be inviting an awful lot of litigation even judge klein and his dissent thing opinion and stance and so leave it up to the  process well if you're going to have a lot of appellate issues or a lot of appellate litigation on that issue i think if you don't have a standard objective so going back to the application of east well let me just going over what  me and certainly in some other contexts actual damages have been read to exploited emotional distress damages altogether and is that your view of what's meant here as well  transaction well i guess if i were to have to cast a vote i would say yes because knowing i practice bankruptcy law so i know what happens practically speaking in court every day so you know the legislative history isn't all that great for us to try to figure out which way we should go on it but the important thing is to understand the practical process in the bankruptcy court if i follow bankruptcy cases give notice to somebody and they try to  nothing further happens so the three sixty two each is well it's it is a very dynamic very significant weapon for a debtor and i don't think you need to include emotional distress damages as part of the quote unquote that judge client thought you would be taking away if you didn't call the police standard so i'm kind of i'm in favor of doing the financial injury test and i'd like to say real denial of the award of special damages fourteen hundred forty dollars for physical therapy and fifty four hundred dollars for dollars for rent because the record clearly show that the debtor had very significant problems evidence was provided that he did it and lastly in regard to the attorney's fees this is probably the most important issue to the pellets and i think the judge did not abuse her discretion here either she followed the equitable interest divest as an operation of law at the end of the thirty day period under california real estate law once a party has an equitable ownership interest in the property whether it's by deed or by marketing jamieson's have to act as a matter of california law to divest the dawsons of their interest in the property by foreclosing which started you authorities going back to the eighteen hundreds on this point from the california supreme court which as you know this being a matter of state law binds this court i wanted to comment on some terms of crept into this argument about the nature of the state violation that was proven as not agree just inadvertent successfully in this case and say this wasn't a bad thing that we did because we really didn't know what was going on between the various departments of the bank and i submit to you that when a bank or another large institutional president elects to compartment its various functions it has a heightened duty to make sure that the right hand of the bank goes with the left hand is doing so do you agree or disagree with the premise that we are reviewing the attorney feet award for abuse of discretion your and then it looks and assuming that the firms on those two points then reviews the ultimate award for abuse of discretion i covered that i think in my opening brief and i have the citations there if the court would like me to direct you to them in other go back to the question of emotional distress damages not least in the context of other economically based statutes like the security sacked we've held an actual damages do not include damages for emotional distress why should the the creditors will leave the other alone while the debtor gets his affairs together and mr malcolm couldn't resist telling you that mr dawson that filed seven filed five bankruptcies but there's no suggestion in this record that he was a file or there was no sanctions there was no attempt to dismissed i think in this record shows that the dawsons were irresponsible in fact they paid the bank thirty nine thousand dollars on this loan during the time with the proceedings r future bankruptcy situation this isn't a situation where this court needs to to say well we don't trust bankruptcy judges to do their job you know that the concept that well emotional distress claims are subjective are subject