thank you your honor may it please the court charles markley representing stephen are not the plaintiff in this particular case we submit to the court that the only issue that is in front of the court today is the standing of the plaintiff that is does a standing does the plaintiff the bankruptcy trustee have standing to bring this case in this case the debtor originally filed a chapter seven petition in bankruptcy filled out the forms which include a statement of financial affairs which we call a sofa and also the schedule of assets and a schedule of liabilities in these papers the for closure of these pre partition for closure of the parties house was mentioned in the sofa not as a claim he was just mentioned in the sofa it was not listed importantly it was not listed in the schedules as a claim or otherwise it was only a passing reference in the sofa where it was the case was then administered nothing was done by the trustee about any claim on account of the foreclosure nothing in the case was closed so the question today comes down to if the foreclosure was indeed wrongful does a reopening of the estate an appointment of a trustee does that give that particular claim for wrongful foreclosure over to the new trustee or was the claim abandoned we have to look at the statute to make the determination of that and that hinges on whether or not the debtors claim was properly scheduled and under the bankruptcy code section five fifty four see any property that is scheduled and not administered by the trustee is deemed abandoned the statute uses the word scheduled it doesn't use the word statement and we have to distinguish i think carefully between schedule and state and congress could have said any property in the schedules or in this statement is  abandoned that's not what they said we have to presume the congress knows the difference the debtors are required to schedule all assets including claims that section five twenty one a once they have to cause of action had been sufficiently identified even on the most of even if it didn't appear on the schedule so can you can you address the district court's reasoning and the  all right i understand you're dividing your time as  please watch the clock question in that case was was the valuation of those assets so deceptive that it was not adequately disclosed the court found that despite the undervaluation perhaps intentionally by the debtor that they were still intention listing was not so defective that it would forestall a proper investigation of the asset and i think that was referring back to the case on a case so as long as that's out there and the trustee has the option of the opportunity to see that there's an asset the trustee isn't balanced simply by what's there the trustee has a three forty one hearing where he can house the debtor questions he can request additional information from the debtor he has the right to go out and conduct a separate investigation has the right to request that the debtor provide the documents that were done with the foreclosure it's not as if in these cases that the debtor was attempting to hide an asset in all of the other cases that are cited for the proposition that disclosure was inadequate on the statement i think that five twenty one a one is clear that it says that it requires that there is to file the state in their schedule of assets their current income and liabilities and statement of financial affairs five fifty four c says any assets not otherwise administered under five twenty one a one are abandoned when the case is closed so if congress had only meant to say only assets that are scheduled on a particular schedule are abandoned it wouldn't reference all of five twenty one a one because it referenced all five twenty one a one and not specific subsections it's the presumption is that congress intended all of those documents to be included now this question of the word scheduled and notice in the in the statute that it's a small assets not a defined term but in the context of what the bankruptcy code is talking about is that the debtor has an obligation to disclose their information and when the debtor does that and the trustee has the opportunity to meaningful read meaning have a meaningful review of that and the case is closed all those  abandoned if that were the case there are two things that happened number one is you have information that's on the statement of financial affairs that is entirely meaningless a debtor hypothetically could put all of their information in  statement of financial affairs never on a particular box in a schedule and of the trustees argument no matter how much disclosure is made in the soul of it is never abandoned because it wasn't put in any particular box who may not think of a particular cause of action related to an event so for instance we have a a car that's repossessed or a foreclosure and debtors attorney isn't necessarily going to know to  claims wrongful foreclosure wrongful repossession there could be any number of cases that types of causes of action legal theories out there and under the trustees reading of the statute is a debtors attorney or the debtor are going to have to look list every single potential cause of action that could ever be thought of in any case and put that somewhere on the for closed debtors are being named in adversary proceedings an order for the trustee to try and recover assets and basically doing avoidance action to bring bathhouse look along to the debtor or prior to the debtor filing bankruptcy back into the estate question otherwise i would throw in the time to my class that's fine thank your honour's my name is mark rosenberg i'm here on behalf of david weigel who was the successor deed of trust trustee in the underlying foreclosure and of course we join in the argument made by my colleague mr cleverly here that the claims were abandoned under section five fifty four c when the bankruptcy was first closed opposing counsel had indicated that the only issue here is standing of course that is incorrect because this court can affirm on any basis supported by the record and mr wible set forth a number of and that's whether or not the district court considered it mr wible put did not respond to any of it although he had sixteen more pages he could have briefed and didn't respond to any of it except to say that this court should ignore it well that's not the case and i just want to touch bases on a couple of things here because i don't have much time but i would note that in the under lying bankruptcy case in this case the court issued a published opinion at five fifty four b r two forty one and it page two forty seven of that published opinion the court held that this was an avoidance action even though only state law claims were alleged because in order to get the relief on the avoid relief on the state law claims the court would have to void the underlying foreclosure therefore call it law of the case if you will but this is an avoidance action and section five forty six a has a two year statute of limitations the bankruptcy closed in two thousand and twelve the lawsuit was not filed till two thousand sixteen many years past the statute of limitation date i'd also note you think that's your strongest argument on the merits you had i think you multiple arguments as to why the well we have a number of arguments the primary argument was argued by mr cleverly we're arguing that we were also arguing and i'm not going to argue all of them right now but under oregon statute o r s eighty six seven six seven there's two subsections under which dismissal of claims should be affirmed and these two are specifically asked to mr wible subsection six providing a five year statute of limitation again it was close to six steps subsection two saying that the summary judgment should be granted unless there's clear and convincing evidence that the debtors could have paid but no evidence was provided here i'll miss the one thing i'll say is that plaintiff might argue that mr wyvil was not a proper successor trustee that has never been judicially held by any anyone and it's too late to start alleging it now and it's in the deed of trust thank you very much i will turn over to my coll originally were participants in or defendants in the action but were dismissed as bona fide purchasers and my client is uniquely situated relative to the other a police because my client is also a bona fide purchaser and as a bona fide purchaser under oregon law the is conclusive as to my client and the statute as eighty six point eight zero three and that statute provides for the recitals in the trustees deed are conclusive evidence in any court on the truth of the matter set forth there in as to bona fide purchasers the recitals in the trustees deed in this case in the white bookcase and that's at the supplemental excerpt of record pages to forty two to forty seven they have stablished that the debtors defaulted that they provided there that the trustee provided the required statutory notices that the property was sold to the highest bidder but most importantly it recites that the trustee was vested with the authority to sell the property by the loss of the state of oregon and that's conclusive as to us bank because they stepped into the shoes of lasalle and lasalle paid valuable consideration in good faith behaving honestly and frankly without any intent to defraud or seek unconscionable advantage and never nothing presented at the lower court level by the trustee to counter that there is no genuine issue of material fact that that was the case with respect to your question about what we think the strongest arguments i'm going to go out on a limb i do think that the statute ran on the avoidance claims and those claims are foundational for the trustee he has to bring an avoida claim in order to avoid the foreclosure sales in order to get to where his two remaining claims are which are trespass and invalid encumbrance now here ridgeley had those foundational claims but dropped them they were in the form of a declaratory judgment but he dropped them because of the bankruptcy court's opinion that those were avoidance claims and that he was beyond the statute of limitations and then with respect to the court's question about this asset in  particular in the district court's conclusion in this case that the listing of the foreclosure was sufficient in the sofa to affect abandonment i think it's interesting to know that the district court noted that it's a very odd asset and it is it's not that that may not really he said in any way in any pragmatic way have existed at the time that the first trustee looked at everything but came to birth later because the values in this market rose so high that mr  cases where foreclosure properties had appreciated in value and relies on that but the district court said look there was enough evidence here for the original trustee to look at that issue under the sofa listening and that's consistent with case law in which the time quick to or to the cusano case the debtor properly scheduled post petition song rights that was in the schedules but the court held that since you didn't specifically say pre partition new song rights which means royalties that that claim was not abandoned and i think it's important here we're not saying that the debtor did anything wrong the debtor and his lawyer probably never knew about our claim in this particular case we're not trying to say they're hiding anything but if they don't list a claim in the schedules it is simply not abandoned that did the cause of action  yes there are the cause of action was probably i'd have to look back at the dates but what's happened is that the oregon court of appeals in cases cited to this court has said when murders appoints the successor trustee the resulting sale never ocurred it wasn't a sale done by a proper trustee so this sale doesn't exist that's what the corrigan court of appeals  said now the question on the scheduling if we look at at five fifty four c it says any property scheduled under section five twenty one one and then we go back and we look at section five twenty one one and what does it say it says the debtor is supposed to do a schedule of assets a schedule of liabilities oh and he's also supposed to do a statement of mine actual affairs i the bankruptcy code could be there you could have it on a boyden section we haven't pleaded that we don't claimant the defendants don't have a right to replete our claims our claims are soley and strictly under oregon state law not under bankruptcy code at all the end if this was an avoidance action which avoids action would be a preference well no that doesn't work a fraudulent transfer no that doesn't work what preference or what avoidance action is there out there you can just say avoidance it has to be specifically into the section i point out to the court there hasn't been any discovery in this particular case my recollection is judge done in the bankruptcy court stay discovery until we got all of the the legal issues wound out so when counsel brings up  point eight three and says that their client is that the recycles are conclusive in their favor they're not if we read eighty six or asked eighty six point eight zero three it's conclusive to a purchaser for value in good faith relying on them there's nothing in the record that says that faith they relied on them they just don't have any of that in there we have presented to the trial court defenses and reasons why all of their state claim defenses not not the avoidance issues but the not the scheduling issues why we will prevail on all of those claims for example they bring up a district court decision out of the eugene where the eugene court case was an appeal to ted in respect  tool five point four seventy that's the invalid incumbrance statute that we're using but there's an opinion from the district court judge that that says does not apply and benefit any private parties it's only for governmental workers and employees to use that statute well that might be what the district court said but the court of appeals oregon court of appeals in the view kind of itch versus kind case district court's decision i think was just before the decision came out it from the oregon court of appeals but but the defense number cite the court to cite this court to the prevailing decision on an oregon state law issue cite the court to that your honor this case as the district court decided hinges on whether the claims were abandoned by trustee but they would only be abandoned if they were properly scheduled and that's what the statute says and we it's our submission to the court