found that the bankruptcy court cared when it denied the motion for reconsideration that was before it was a somewhat unusual case in terms of how it comes to you because the bankruptcy court had not ruled on th under the judge did rule but there was no presentation of findings of fact which is of our final judgment we take responsibility for not presenting those it in a timely fashion however when there was discussion between the parties as to days i'm not familiar that i'm sorry that i'll look it up quickly thank you so we are in a situation where we're asking that it is the unusual situation where we simply have a motion for reconsideration submitted to the court committed manifest error and denying the motion for reconsideration and so i think that's a very narrow scope of what's before you and that's a very narrow issue within the scope of that  probably three minutes the rejection of the rejection of the lease was done very early in the case of the trustee and the appellant here the landlord stipulated that the lease ought to be rejected the tr exercising her business judgment rule decided that she wanted to be really the burdens of the lease and as we have submitted under case law in our brief this also relieves the trustee of the benefits as well the benefits and the burdens of a lease are rejected the parties chose to reserve quote all issues unquote with regards to the rejection i don't think the words were terribly well chosen in hindsight it would be nice for parties to say we reserve claims and defenses and counter claims and and all other issues of the much more stance of with regard to the reservation but i think the reservation of all issues is very and compassing and it would include the issue that the district court commented on that the appellant failed to raise jurisdiction during the course of the proceedings in the meeting in the district court's order the district court says that the appellant never raised the issue two jurisdictional issues number one to judge time or have jurisdiction over the leaves to decide issues within the least in the trial something that you have mr guy will will undoubtedly talk about during this presentation lease is taken out of the bankruptcy estate and the very issues associated with the lease that are taken outside of the bankruptcy of state and the parties that can resolve their matter elsewhere ideally is fake court or there's another way to resolve police issue and that's true of claims during  proceeds in following independence principle which is which is the only one circuit was he had with regard to most current with regards to the letter credit issues at the time that the letter of credit in its prose to work he had no through the eyes of judge tanner at this time in the in the law that he had in front of him at the time you know the judge tanner did not was was looking i believe was was operating under authorities under the ninth circuit with regards to letters of credit in leases we don't have any other cases in the circuit that deals with these issues of a commercial east and a letter of credit and this type of security deposit that we have the forest that i'm obviously very concerned about is that as a regular bankruptcy lawyer is that the world of exactly three contracts and leases needs to be whole and very carefully because the bankruptcy code has honed in very carefully three sixty five deals with contracts and leases fit within three sixty five it breaks it down carefully chappies generally says aircraft leases technology issues they're all given very thoughtful and careful treatment and i think well you know we don't have judge standard asian what we do have is we have a judge being very careful with regards to what he does or does not have jurisdiction over what is or is not a property of the of state and i just i just heard that we thought that the court  admittedly there are cases from other jurisdictions and they do discuss factual situations that deal with contracts certain contract price and the application of letters of credit but there is no other case in those circu it was not something he could decide in his course i think the only other conclusion in this is something i've thought a great deal about is that the bank if you if you've if you read the transcript in the transcript counsel for the bank indicates that one of the things they could have done is gone to state court foreclosed on the collateral that this debtor had pledged to the bank which would include general intangibles that would enable the bank to make an argument or go after the debtor with regard to actually coming after the landlord in some sort of a conversion action or arguing that we had possession of the collateral that the bank should have had rights to the bank could do that you're saying the bank could do that what of the bank security interest or about better at that point i've had it so i am having trouble understanding why that it would not be putting aside all the wonderful precedents to be out there that i need to study more of  understanding a bit about letters of credit and leases and i'm having trouble understanding why that wouldn't at that point be property of the i think it's a it's an excellent question it's a difficult question in the and the breach makes a lot of credit relevant as security for the for the landlord actually the letter of credit is activated the minute there's a breach and it's available to t thank you greg the bankruptcy court made a fundamental error based on a misunderstanding of the essence of the letter of credit and the claim that was being sorted by the trustee in this case the questions from the pamela i think are understandable for a couple of reasons one is i believe that the landlord in an effort to try to avoid a resolution of this i feel as is raised shotgun approach to variety of arguments various levels  but miss is the underlying essence of where the bankruptcy court went wrong and that is it misperceives the nature of the action and there is a basic concept about letter of credit the independence principle which the judge i think reacted reflects the belief about and didn't appreciate the fact that the trustee is simply seeking as from knowledge to recover damages under a least if you think about it the leases got duties that continue after recovery possession and one of those duties of course is the return of any unused portion of the security deposit very clear under washington law that that is a rule there's a big asian duty that continues on the part of the landlord there's also this duty to effectively account for any sort of loss of the security deposit this is not a case where the trustee is seeking to get damages for an improper draw on the letter of credit it's not a case where you're saying the specific dollars that were paid in a letter of credit need to be returned it of fundamental misunderstanding of the nature of the claim at least as approached by the bankruptcy court for the court to say that it didn't have jurisdiction over a claim relating to damages for grief at least it is under the law the existing manifest clear error it was just a mistake it didn't get it right because you misperceive or at least perhaps this terrible but he was pursued the nature of the claim and may there was no question raised at the time of trial or any time prior to the motion for reconsideration as to whether the a fact of the rejection of the lease somehow included the court from  true that's not the way it works the landlord's obligation still has to follow the terms of the lease regarding the rich mention of any security deposit even after rejection and claims relating to the breach of the talking right now it's not a question of something going away as a matter of policy you wouldn't want the landlord to be able to retain more than it was entitled to under the leafs just because a lease is rejected and then have creditors the debtor left most often unsatisfied not fully paid on their claims why because the landlord has been overcompensated just doesn't make sense the concern that the court raised regarding the lack of interest of judgment of course concerned me because in this case it was the landlord's lawyer's responsibility to care finance inclusions didn't are rightly or wrongly the approach that we took was to simply try to bring to the court's attention that the mistakes that it made back in july of two thousand two should be clarified or corrected through a motion for reconsideration our thought was rather than go through all the time and effort to have improper findings and conclusions prepared and presented and from our perspective when that was of course the burden of the land was counsel then with then only to try to knock them down and explain to court why they were in error it would be more direct and efficient frankly to bring the court's attention as we did in through the motion for reconsideration we did that the court ended up as you know of course underlying question because there's no question that the court this court or the district court can't properly consider the reconsideration ruling as to whether it was correct or not without looking at the underlying merits of the underlying issues and there's no issue here as to what the judge ruled or the basis for his ruling findings from inclusions in judgment are ordinarily very important because that's part of the and now this is found as the opportunity to review whether or not there was an abuse of discretion in failing to apply the war and the reality is that there are cases that we've cited in our brief to the fact that the years ago going back to the court and presenting presumably the landlord's shaunie would present finally sinking inclusions based on the same rulings that we've been arguing about now for a couple of years appropriate procedure here would be to affirm the district court's ruling and agree that the bankruptcy court is gives this discretion with respect to the motion for reconsideration that this or current partner if not but that happens from time to time and know that we have a president in a totally different administrative law context where we review review an appeal of the denial of motion to reconsider and we didn't have jurisdiction over appeal of the underlying system so i think can happen and we can deal with it but it has to face the tougher manifest error st andards so i'm that to understand correctly that your position is if the bankruptcy judge made a conceptual error what was the property of of the better that was somehow complicated or different with then with respect to the notion that the trustee had a right to bring a claim for breach of least and in fact it was stipulated  the morning of the trial when the back of the court raised this issue of gee this is this has to do with a letter of credit and because there's a letter of credit involved some fashion here i've got to step back and not  exercise any jurisdiction over that part of the case it was just wrong and we tried our best to explain to the court at the time that this was not a matter of trying to claim that there was an improper draw on the letter credit try to explain that or not trying to get the money that we you know the dollars the specific race that was paid that's not the issue the idea is that we have a claim for breach and unfortunately the bankruptcy of course is arguing it here and i think the short and easy response to all that it when they say that the leave the trustee abandon the weakest hand of the lease backs of the debt or a loss standing those are all phrases from their brief but they all ignore the fact that panel to affirm the district court decision on the merits and on the principles that were stated in that decision i think it was right let's see if either of the other then the judges have questions we could give you a little more time because we're going to give filing of claims that has never happened either in the bankruptcy or state there is no need nor deadline for the for the bankruptcy courts to to file any kind of a proof claim that landlord is making other than that the contested letter of credit issue the landlord is hearing before the court with regards to presentation of its own findings from collisions of law i suffer the fact that the judge instructed us to do that and we did not do that as there is nothing preventing the trustee from doing that on their own and avoiding where we are restriction but if this rule the judge a person called to my attention has any flexibility is it possible that when the right of appeal extinguished it moves out the opportunity to consider a motion for reconsideration and that appeal as well subject to that rule