brief says there was no deviation in this case they'd insist that there was no deviation the reason that's important is the court below said that the creditor did not quote the notice to the austrian front this is a clearly erroneous finding there is not one shred of evidence before the court that indicates that's true in fact the creditor testified through shri back the principal that he kept to the same procedure in all the cases and he had no reason to believe he didn't send it out to the same lawyer that he here for almost two decades not to have a problem though with the district court's findings of fact th satisfied because of the mailing presumptions that southlake itself gets the notice but the district court thinks that the best you can say is that sometimes sounds like pass that along to the firm i would respectfully say that the briefs on the other side admit it was an established procedure in fact it's a very strong piece of evidence he testified he always sends it he never testified to any deviation and indeed the lawyer testified from the austin firm that they got the things the bankruptcy notices by mail right so i'm looking at this is page twelve  from so your and he says there's no evidence of this practice was followed with respect to the notices received concerning sterling's bankruptcy i would argue that that is clearly erroneous that is not the testimony that was given there were new and therefore they could not have acted willfully i would say no and here is why we are not required to make mr austin admit getting the receipt we can never prove that if that were the standard we would have to if there were a a paper trail record keeping trail for these no that particular notices were sent down then that statement might carry different weight but my argument here your honor is well there were some arguments about that there were no e mails for seven years they were missing and let me talk about the excel sheet that was also missing because i think it was a lot of the trial it to answer your question about record keeping the law firm allegedly prepared excel spreadsheet that contained all sorts of records it gave the creditor you know a monthly update like collection lawyers do we only got one for seven years and the one we got amazingly enough after jackie was arrested released and they knew all about this they can't get at that point they can't say they didn't know it didn't contain any notes that she had been arrested incarcerated released or that the file was closed because of bankruptcy so to use their lack of recordkeeping against the person who was arrested in violation of the said it is particularly i think unfair and i want to go back to the statement you made a moment ago that you don't have to show that they knew about that just charge order in order to for the court ultimately to find wealth and i would agree with that of course they have to show we have to show they knew what i what i meant or what i thought i said was we don't have to have made it they do it right but you know this court would still have to make a finding and you would still have to establish by clear and convincing evidence that they knew about the discharged in order to find that they did something willfully yes you clear convincing evidence is the bankruptcy court mailed it to the correct address the correct that and the court found that ok and that's a lot for the regular and established business record and proceed years of southlake which boston knew about should be against jackie sterling they kept no bankruptcy log they kept no record of mail they kept no record of the emails the file was lost these are all pieces that i had in my view in favor of the fact she noted when she checked for bankruptcy on the jacket and of course the jacket is gone but again but she she's the one who said she checked twice and there was no record of bankruptcy once when mr lynn said she was planning on filing in may of two thousand and eight and then at a later time but she also testified and i think it's key to answer your question i asked her does the fact that you don't have the notice in the jacket that you didn't see it mean you didn't yep she said of course no she said no in her she's the one who runs the office so she said that was not true the bankruptcy court presumption or statement that the lawyer said they didn't get is simply not evidence that it wasn't sent or received is that a credibility determination oh by the bankruptcy court that he credited what the lawyer said that he did not receive that even if you credit that he's telling the truth he didn't say he didn't receive it i want to emphasize that he never said that he very carefully and cautiously said i didn't see it in the file if you credit that is true my answer to that respectful so what that's not tonight during his testimony though that he was aware of the discharge order he said i did not i'm aware of it because i didn't see it in the five he didn't say they didn't receive it and the testimony i'm sorry now but again i think the problem with that is we have no other way of proving mail in a o l surface ma that you know younger people would look at and say are you kidding me but at the time this was how things worked we have no other way except presumptions to prove surface mail notice on the creditor or on the law for there is no other system unles admit receipt and i think the other thing to emphasize is that the bankruptcy judge said it's hard for me to believe that a lawyer would do this if he got to know it and this to me is exceptionally unfair wrong and the reason is there are hundreds of cases of people violating the automatic stay unfortunately and violating the district order if we are to say that it is never logical to  state you're never going to get an advantage out of it and mr column are a star in the trial so why would a firm do this in the end it would work but that turns logic upside down people why only court orders all the time unfortunately and if we are to presume that the lawyer is entitle to some sort of special honor because he's an attorney i think that's unfair the fact is the order was violated and there are two ways that we've proved it one is through the established procedure and the second is the direct mail to the creditor and i think established procedure which my learned friend of himself says there was never a deviation from in the brief is stronger because ten years of business i brought the top the regular procedure was used to abdicate responsibility for south lake to let them out of it but then used to not indict beloved for i don't see how we can have it both ways can just maybe taking a slightly different direction that the bankruptcy judge expresses i think some frustration that nobody seems to have complied with the local bankruptcy rule fee four thousand to your argument seems to be oh nobody pays any attention to that anyway that i'm not happy with that argument you know it seems like that's this this situation is exactly what that rule is designed to avert my argument is not that we shouldn't pay attention to it my argument is we interviewed the chief clerk of lake county she testified that if there is a bankruptcy notice that goes to the clerk's office in lake county indiana it's thrown in the garbage they have no procedure to assess these notices and put them with the fire because they get the notice with a bankruptcy number and they can't correlate that so it would have been a worthless said but i want to emphasize the reason for that is well i don't know if they had filed it or in there was some way to check it may have prevented it except the testimony was the judge was was the state court judge she did not in fiction get a particular procedure of filing of the bankruptcy case to the last gen firm and the court is hard pressed to believe and so on that they would have done something so it's not just with the court have thrown the waste basket or not that if the firm had received such a notice are we going to assume that they throw them in the wastebasket to know what the source of the notice is not a cure here when you get have notice from their own client in a regular procedure so you're asking for the inference that the bankruptcy court was willing to draw that here's this regular practice we're going to draw an inference that it was complied with this time they had actual notice the right people did it the right time i'm not saying you couldn't draw that inference the bankruptcy judge didn't but one more piece of evidence such as compliance with the bankruptcy rule would be more evidence on the side that they really did get notice of it in which case you feel pretty comfortable saying you violated the injunction had those things happened i would agree but of course they didn't happen and the proximate cause of what did happen is that the creditor austen for southwick nautilus just may please the court to bring something to your attention my name and i have same last name is david austin is it the defendant we're not related it's total coincidence but i just want to point that out of it i want to focus on some of the questioning with respect to local rules i didn't see a huge difference in any of the briefs regarding the standards of review the standards of evidence the clear and convincing the issues the the clearly erroneous review standard that an overly use of the legal issue i think the breach pretty much agreed on so could i ask you though i mean it seems based on the bankruptcy judges findings that your client southlake did have actual knowledge of this bankruptcy the judge goes through a careful analysis of the mailing rules and the presumptions and you at that point incur obligations with respect to the person who is bankrupt you have to live with the actions of what ever legal agent you chose we enforce that rule all the time not only in civil cases but even in criminal cases where somebody's spending extra time in prison so even if the the the law firm didn't do what it should have done why aren't you on the hawk for violating the injunction mailbox rule notice of the bank strength but the bankruptcy judge never concluded that south lake had actual knowledge of the discharge well i'm going to quarrel with that a little bit in collection efforts you knew that you had engaged the services of a law firm to collect this fitness club get whatever it was and you didn't take those affirmative steps to shut it down well i think the evidence at the trial was in the bankruptcy court found that the normal practice of softly was to forward to the law for any notices that i got from the bankruptcy court with bankruptcy judge just finding he says in the part that i noted earlier that only sometimes did this happen at times is his phrase well over five southlake had a practice at times affording bankruptcy case notice to be off firm with respect to collection cases but then he says there is no evidence that this practice was followed with respect to the notice is received concerning sterling shown that you were notifying your for your law firm religiously and getting that done and trusting to them to do the right thing there'd still be another issue in the case but it would be somewhat different from the one we court also determines at south lakes receipt of the notices imparted knowledge to southlake of the filing of the case and of the apply of the automatic stay and of the entry of the discharge use of the court and find that the court specifically made that finding as to your client the i misspoke myself i want to distinguish between the notice of the bankruptcy court judge found that software period and the notice each required to hold him in cont contempt is i would think of if the firm knew about the discharge and they go ahead in violation of the discharge and continue to try to collect on this debt that's a willful violation it seems to me yes exactly and the question earlier is that the court found now the age of the discharge why shouldn't there be some obligation on you to make sure that the law firm knows why shouldn't you be held responsible for the law firm acting on your behalf violating that porter well something shouldn't be  and i don't understand that at all sounds like it is in the same position as its agent you know the law firm again you know we send people off to prison for twenty years for this sort of thing so it's evidence that southlake under took some action which violated the post discharge injunction he seems to be calling for an affirmative action and here what we have is southlake knowing about the there's there there's still no intentional conduct on the part of so why isn't there no one would ever be in contempt because you would just have to see no evil hear no evil speak no evil approach the law firm could keep collecting and you'd be all fine and your honor that's exactly why the local rule exists and it can it doesn't just like you agree with me that no one will ever be liable for contempt as long as they make sure they don't know what their law firm i don't i don't because i don't think that this is a of master servant relationship where the principals hold responsible for something that the law from does there is no way in the world southwick over for five hundred a day and seven hundred collection that they were not novices to the collection business but they lake superior court about the testimony that was uncontroverted at trial that judge moss didn't pull the court files that's not to be exact testimony but their only gets half way to the issue of indiana tr absolutely requires the bankruptcy counsel to serve notice and all counsel of record in the collection cases so the bankruptcy court rule required nose to the court and to the parties that's the specific language of the rule and the state court rule rule five which is even more specific than the federal requires of service on all counsel in the state workers and the written certificate of service requires a notice to the state court even to the partners so that notice to the state court of under any other trouble five would have required services all of the attorneys of record which would have been service on the ocean for all they do is comply with the rule book and that's the purpose of the rule ok you're over your time so i'm sorry the secular thank you mr  doing the relationship between the client and the lawyer in this case really is not your own or with due respect an issue with regard to well we should you should answer the judge's question because she might think it is an issue so i would if i could answer yes or no thank you i'm sorry when when the lawyers undertake to prosecute this collection the the scope of that relationship becomes defined there is no ethical violation in pursuing the collection  case there was some evidence in trial and i'm sorry i don't have that in my head about the record that that the process goes forward the lawyers prosecuting the case until directed to stop  there was there was some testimony about the process and and the periodic updating of the individuals case by case by case i don't think there's any anything in the record that says that per each case a note was delivered every time something happened so if there's periodic updating during fests multiple year period it why isn't that something you were required to or should have informed your client that you go out and get in arrest warrant and a civil case for a debtor who has a debt of under a thousand dollars well where you are two things one in the process of the collection case as a practical matter collections cases and volume of collection cases there are there are certain there are certain impractical things to do to contact your client every time lawyers timing devices their stock in trade are commodities we are the machine so as an attorney works every time that attorney touches the file to do an additional thing is an additional expense either to the client or up or as a part of allocated or so the business of collection is do these things do these things in a group and do these things essential ritualistically so when a client who has an over a thousand collection matters that client unless they specifically direct us to contact them every time we take action if we're charging them by the hour generally judge that the sheer cost of the collection overshadows the collection itself but what's what's critical in this case and i think the that the court the court has touched on it is that that the standard for reversal here i mean it is a matter of of clear air or right does does this judge's does judge cling berger's judge decision fit within the entirety of the record because just because there is an alternate argument to be made mr shows does a great job of alternate arguments that it doesn't give this court that that's not the question of the court so can i ask though i mean is is the art are the records in your law firm as bad as this case seems to indicate they are you just don't keep track of anything  through spec don't think that was the testimony at trial that's mr shill is just argument well good we have this last file jacket we don't have any record of receipt it's very easy with electronic systems you just throw in a reference you no bankruptcy received if your collection firm you're not keeping track of which of the cases move over into the bankruptcy process your risk of a lot of things your risk of violating the automatic stay or risk of violating and ultimate discharge you it seems like an extraordinarily bad practice for your r t two to call upon the electronics electronics are changing every day i know that i was there with them too but but the fact is if you're in the collection business and you keep trying to collect a debt from somebody who's filed for bankruptcy you are almost certainly violating to begin with the automatic stay so your firm must have some system in place to avoid that outcome a bankruptcy then we take action and notice of the bankruptcy comes from a bunch of different ways and how does that action get taken and is it reflected in any paper records if your firm or electronic records or the like the testimony was that when a bankruptcy is receded then it is noted and then bankruptcy noted like where well in one point it was no it was noted on the file jacket that's one place in another part of testimony there was notation that it's done by way of a spreadsheet and then the other thing is it's noted in the paper file itself as an example it was of paper file produced here it has records a little bit on the out there but the file jack it w reading the evidence in the record that some of the excel spreadsheets did not exist anymore or were not produced we did not produce anything here there were no discovery disputes put before this court we did not we were not called on th exist anymore there was no particular it wasn't entirely clear whether those specific spreadsheets of mr sheila's thought should exist existed at all we gave mr  file none of these issues and discovery were run at the trial court level none of these issues are part of the filing fact the to bring issues up about discovery now is is this is the cart left in the horse i want to go back to the firm's responsibility for a minute what impact and i think this evidence was not controverted it child what impact should it have that miss sterling contacted the firm and told them she was going to file for bankruptcy she absolutely that was what i was about to say in terms of know what impacts that that happen on on what you do and on this court's ruling well one in a suggestion of bankruptcy by a person without a filing a bankruptcy that's like somebody land right now is you have to check pacer the only case i've ever found that's actually talked about it was a case out in north dakota she has it easy enough obligation on you before asking for an arrest warrant for somebody when you've been told by that person she's going to file for bankruptcy to check and make sure your honor we did twice there was a year and a half between the time that the plaintiff in the sterling suggested she might file bankruptcy and when she actually file bankruptcy we checked twice but you didn't check before you ask for the arrest when you checked much earlier right and if a person says they're going to file bankruptcy and it's not a threat maybe they file brasi how many times more because you bankruptcy is a privilege and candidly a bank person who seeking the protection bankruptcy court has certain obligations like notice and if you say judge in your ruling that well we think they should always check the patient now what we've done is relieve somebody of a statutory obligation in this case we have a local rule in this case we we weren't on the matrix you know in terms of things that i mean i write them letters and cheering for things i'm concerned about of the bankers who aren't she was aware there was this debt but she didn't do a search of her own to see if there was a lawsuit having been filed with knowledge of the debt of south like she could have gone on the lake county docket the bankruptcy attorneys to disclose the southlake death she idea but which as you see the of state and discharge they have an obligation to take affirmative steps to undo the act of execution number two this was not a dormant case a writ had been issued and it was issued after they did nothing to check that out number three in terms of checking to file an answer to question they say they don't know when they checked pacer because of course the file jack it is missing and they were unable to answer that question number four in terms of discovery we in fact get asked and there's trial notes of this for all their records to show they are perceived years of safe keeping the trial judge ruled against me and said you are entitled steals other files so there is no record did you go there to get her out or we prepared him ok let me see that motion well that was missing too and it turned out of course they never did when they were notified that she had been in jail for three days they still never did anything and let me talk about the last point which is what counsel raised which is and the point that the court race which is a gypsy agency comes in two parts one is responsibility and pam ross testified we had absolute authority we had unlimited authority to bring the ritz and she testified she drew the motions for read the clerk and she said she did not check with her creditor she did not need to secondly as to control they chose the method of control it shows not to control they chose to let their lawyer do whatever they were going to do without any review lastly in terms of the file being produced amazingly enough we receive that those letters are missing they never sent a notice to the creditor saying we've issued these reds and this one includes sterling those just happened to be missing from the file the fact is