business is sufficient under the conduct of the supreme court's ruling in the lane and this court's ruling in cancer on this is not a case your honour's about whether or not the ball reserve known or unknown creditors that was made clear in both the bankruptcy court in the district court was denied by the bankruptcy court and there is now pending before the bankruptcy court another mr y second motion for reconsideration and that issue is subject to that motion for reconsideration so that could come up to the district court and to us at a later date publications were sufficient if we write an opinion saying that and then later on the bankruptcy court holds mr white to be a moon a creditor we will have issued i think the ultimate in  it's the second motion for reconsideration the initial motion for reconsideration has already been denied by the bankruptcy court i don't dispute your honor that ultimately in a motion for reconsideration the judge could determine that mr white is a known credit decision is not reversible affect the bankruptcy proceeding in all unknown credit in affects them but it's only one person takes an appeal and that person has no standing because they're not affected by the district court order briefings before the court in our letter we believe this does affect mr white although and i believe the timing may have been i don't recall the exact timing between each of the of the motions but mr white has been determined by the bankruptcy court to have been an unknown crays the final it is not fine with respect to mr white individually but whether or not he's a known creditor or an unknown creditor is not before this court is before the district court because  is if he is a known creditor the district court had no jurisdiction because he had no standing to decide an issue that affected only the unknown but at the time the the at the this is on due process whether or not the notice was sufficient and so as a result of that wait wait was teed up in the bankruptcy proceeding is to file a motion getting a declaration that the notice was sufficient for all known today is whether or not notice as it affects all other unclipping mr white unknown creditors is the notice is sufficient absent a decision from this court or some vacation of the rotor of the district court we have a new order in the new century bankruptcy proceeding that says the notice provided by the debtors in the chapter eleven proceeding is not sufficient to satisfy the requirements of malayan can try with that would open the doors your honor that would require because a trustee is a producer surely can't make a final distribution it would require him to need to do some additional proceedings or issue a new a new bar would or seven years after the fact and that would what would be the what it sounds like you want to write an opinion that just says it sounds like you're asking for an academic piece that says for all i know creditors will recent wall street journal and the orange county register register suffices for purposes of this case that's the order you wanted or you'd like to see right away not that we don't believe that is an academic exercise we think that's crucial to this maker see case because it is but it might go here are there other borrowers who fall in the category of the ruling as we indicated in our brief there are so there are two bars over whose claims ultimately we deemed untimely as a result of the global notice motion by judge perry they've appealed to the district court and those those appeal was filed we ask the district court to hold those those cases in abeyance to pending the decision from the from the third circuit exactly how the bankruptcy court did decide that this notice in the wall street journal and the local notice was reasonably calculated to reach all interested parties when the notice was one day in the wall street journal which there was evidence in the record before them the wall street journal's subscription the average net worth the wall street journal subscribers two point five million dollars in the value of the primary residence of the wall street journal subscribers one million dollars that was before judge perry and we lead you to say oh well then borrowers as a whole are potential creditors they are claimants with a potential or i'm liquidate clane so we need to consider how to reach them jurado when when this motion came before the unknown creditor if something rises in the future but the mere fact that you or barbara does not make you a quote or but this is a situation and i'm i'm kind of arguing with you but i'm just trying to  examiner was appointed by the by the bankruptcy court and over an an eight month period across the twenty million dollars the examiner produced a report that came out eight months after the board was set so to to hold the de a question so none of your decision was made to address any of the possible homeowners or anyone that didn't already have medication so that was really not addressed in your decision to publication and she responds no that's not true because even though they were not known creditors they potentially could have been conjunction with his advisors that begin the notice in the wall street journal one because the world street journal was one of national publication to because the wall street journal was and was a paper in which it would normally find these types of notices calculated to reach you in the dead to believe doing that by publishing it in the world street journal one day in the wall street journal now is judge perry said could in hindsight we have done a better job of reaching the masses vast majority of the great assistant this is all reasonably calculated reason interested are and you're right what i meant to say was the wall street journal given that it was a national publication  was going to be available in throughout the country and that would be the best publication in order to reach all of the parties that potentially could have an interest how much was that the cost of this iran although i don't believe it is in the record i believe it was between fifteen and twenty thousand dollars exit the records has a lot of reference to twelve thousand dollars that would probably break how many creditors voted what dollar amount of creditors voted on the hoof on the i believe exceeded one hundred million dollars your honor but i think what we need to focus on as well is the timing of when the bar notice was was entered into at the time the broad it was entered into as was testified in this  no your honor there is not nothing in the record that deals with this issue is this case still pending correct it is it was filed in april two thousand and seven correct and the park date was set at august thirty one of two thousand seven that's correct your honor that i've had done bankruptcy law for some time and that strikes me as a very quick party setting you right or at the inception of this case it was  it was the expectation of all the parties that it would be dealt with very quickly oh and we knew it had to deal with it we needed to get a handle on the coins and that's why the board date was set by the by the debtors on there's one illiquid asset that we still need to liquidate but you would agree with me would you not that if we work to say that the party has to be reset for borrowers you know who weren't considered i'm just saying hypothetically if borrowers were then to file chris a claim they would still have to they would be objected to and they still would have to prove that they actually had that if that is correct your honor and that would be based on fraud or there any of those claims or any of those claims timely filed and in fact objected to and going to trial if you will yes your honor there is there was one decision in which a claim of  then when you say something was wrong with the line type where you thought the interest rate was for example five percent and then all of a sudden it went to ten right to get here for the court to allow me to participate and i would i think i would like to jump right into the constitutional insufficiency of this notice but i but i'm also aware of the concerns you had at the outset about whether or not this is a live issue appropriate for decision so i'm i'm we going to everybody i think for my purposes i'd like you to dress the jurisdictional question because  your brief argues for a certain standard but also i seem to agree it's a perhaps the only thing that everyone agrees on constructive notice in these two publications but my difficulty with that is that if the rights are determined by the district court who or by the bankruptcy court on the second petition for reconsideration can be your own creditors in this case is over before it begins because everyone agrees that actual notice was not provided and everyone agrees that actual notice is required for no creditors in the court the process issue but let me first start with why this issue is before this court and this court does have jurisdiction and i did some of this in the in the letter but but let me let me kind of replay this a little bit for the court and i want to start with start with the by date motion in word itself and this is one thing that i didn't highlight in the brief i wanted and i want to show this to the court here to start with the only reference to publication of the notice that if you turn to that to the appendix it a fifty two paragraph nineteen this is the only reference if there is an eight possible publication of of the notices they say in addition to the parties that we've already that we've listed in who are going to be noticing by these whose names and addresses are under them to the debtors that was the only request they made for to make publication notice there was literally no never a request let let alone gets the notice gets published one day in the in the wall street journal the weights and other borrowers file claims here is a proceeding and that's the proceeding in which this reference about the rescind the mortgage and the position of an f course that the ruling was new century is not your mortgage lender they don't have the ability to to to mortgage a soul they don't have the ability to give that relief ok also asked for monetary really the court held as to the non monetary prospective relief case dismissed there's no ability to give you any relief as to their the motion for the relief the monetary really we've determined that you were one don't but we can finally decide the court can finally decide whether you get what kind of notice you get as an undertone until later when we have we'll we'll decide this this case was that it was that deciding a fact of that issue this second reconsideration motion had nothing to do with that bankruptcy courts and then by passed in the district court there is no such thing that i'm aware of as a district court bypass and we we review the holdings of the district court actions i understand it that this record is hold nothing in respect to whether or not appeal to the district court the bankruptcy courts inclusion that he is unknown i think that the way that word was entered it was not final until the notice question was dealt with what the court said that not correct not entirely our because that decision was that the question was was he borrowed from his claim and what the court held was we did the finally rule whether the constitution was complied with here until we have a legal proceeding that looks at that and that's this proceeding mr white is the best person to be appealing that proceeding that looked at the you yourself said he would not rule on it until we had a further proceeding but after the proceeding it's not the same proceeding as the one that decided he was unknown he was holding on to it pending else but that's holding onto the fact that he's unknown that is still something that could be appealed could it not his adversary proceeding once that was  process what is the whites next move what's troubling me about this i understand the pragmatics right both sides want us to pass on the legal issue but we should you're asking us to pass on it would seem to me to be dependent upon the final opinions we determine disputes between parties of the parties to get this particular appeal are really the rights and the trustee the the the trustee files a global motion global motion was to ask the court for its in promise or i'd bet that that mail that that notice in the wall street journal as to all as to borrowers effectively whose name and address they had should be accepted as valid and mr whitely appeared object to anything that was a final decision of a discreet proceeding in and it wouldn't even be here that's our point i mean i understand there are lots of lots of people but they all walk away and they're fine with it and one person appeals if that person for whatever reason decides to drop the appeal or doesn't stand it and take the appeal there's so much case law saying filing by publication in a national newspaper and so to argue contrary to that seems to take us outside the case law and put a requirement that claim is really like putting the rabbit in the hat it's basically saying that someone who's who due process says we don't have to we don't have to look into this here distinction we don't have an identification issue because obviously  it holds consistent with with that argument of yours i just read no and thereby i haven't found any case that hold either way i mean i think they can try on these toxic tort cases where you don't know who might have been injured those are just totally irrelevant to t constitute no creditors rather than just potential creditors well i did i did cite several cases that it seemed somewhat similar there was the  every buyer of the car no it was using that as an exam sorry it was a it was actually about a boiler a purchased a boiler that they said you had to do you had to notify and and we cited in the brief several several several cases where the courts were told that ken shon stands for the principle that you only have to publish it in the newspaper and and and they say well this isn't like that this is this is where these people are that bought the product mr nichols my problem is neither judge perry nor judge robinson touch this issue in any way shape or form this is not something that's decided it's been said this is your argument to the district court once that motion for reconsideration is denied in the bankruptcy court and an appeal is taken that the district court saying the bankruptcy court got it wrong as to unknown writer century they are told you were only way to raise that is in bankruptcy so then they're sent to bankruptcy to do that and it's now two years later and and i guess this court to consider if not now when will this really be right i mean we're all we really seriously asking the whites to wait until the district court decides a reconsideration record not simply whether why did the wall street journal as opposed to some other paper or the size of the ed that's really that's not the issue here the issue here is whether there is any constitutional justification for what happened here and to look at the whole record what was that what was this what was the business of the company was in what it be what the notice play and should have been appropriate for not you are not restricted in looking at the circumstances the real circumstances like that supreme court has said in case after case after case you have to look at the circumstances and there was no possible constitutional justification for what happened here the case is why we ask you to tell the district the bankruptcy court to do it right thank you mister murphy we appreciate your participation his motion for reconsideration on the second motion for reconsideration the issue of whether he's a known or unknown creditor is not an issue but is the court pointed out that will still be an issue on appeal but i the second motion for reconsideration it's not the second persuade the bankruptcy court that in fact he was a known credit no your honor that issue has been decided by the bankruptcy court that it shouldn't go up on appeal to tell you more so than is his next move on that issue is to try to persuade the district court that the bankruptcy court  the circuit nor in any other circuit your honor i think is as as pointed out just the mere fact that you've done business with the debtor doesn't justify requiring that you get actual notice of the bankruptcy proceeding think of the effect that would have on the retail cases  some of the other large bankruptcies going on you would require that that hundreds write a car companies recall notices to everyone who bought the model even though or really you know five or ten percent of the buyers have the bad brakes or what have you  honor they do it because that's what's required under the law until then and they also do it because of the potential that the exist the difference between the car companies in this case your honor is and it's an important distinction is with respect to  the car companies can identify very specifically the defective product the model and who was purchased the room you know you should hear is that this was widespread fraud in the million mortgages the vast majority of them were were j here your honor i think we need to look at that from the different perspective of one the borrowers who got the money purchased the homes are ultimately may have had issues and b that the parties who in fact purchased the loans the report you want to focus on the investors in the loans and not necessarily the borrowers there were issues and there was allegations of fraud but they were not as widespread as is indicated in any of the bar he said were counted hers received the money purchased the homes a lot of them got the ability to buy their first homes here on in order to do what what would be required we would have had to examine each of the individual loans to determine if they were any defects in those products doesn't preclude her judgment i think what what happened in this case your honor is that we utilize the wall street journal that was the judge that was as we cited in our our our our pleadings that was the paper most often given those it was given circuit city american home delta a lot of other subprime mortgage cases this exact structure of the nose was was utilized in those cases and in fact in this case we did and the notice  the orange county register in addition in addition judge kerry after considering the full record before your honor i'm not sure what other decision of facts it could be the parties who didn't notice what we did is counsel they were the ones that had the