we'll take a moment to clear the court room scary appeal and so are we still splitting it i have fifteen total and they have fifteen total and then i would suggest that we handle if if there is no objection i would suggest that you do we handle them together and that you  reserve as much time as you want argue both and or you will hear from your adversary on both and if you wish to reserve two minutes for a bottle that time is the entire time you have so when it says two minutes you're  that led to the bankruptcy court deciding that the facts were convoluted that is the very beginning of its ruling which raises a big question will there were convoluted why did you issue a summary judgment when you didn't even know that the facts are all that clear and then the bankruptcy appellate panel when it went up to them they didn't look at the facts and that's all as you guys know are you saying you guys as your audience you know i'm so sorry as your honour's you know i dress that in my opening brief i'm so concerned because the facts were so muddled can i can i just does it in an attempt to kind of call out some of these facts or as i understand it there were two prior to the filing of bankruptcy there were two state claims action and it was dismissed by the time we were in bankruptcy and the settlement actioning so where did the tourney's fees award well the settlement action once it was dismissed i had to appeal it because newport quest decided they were going and remember it was your pills st one or the nd well because it was dismissed because we had settled but nuclear crisis turned around and said since it was dismissed because you said it was inside that state cli state court opinion is the implicit idea that where we can't even be held accountable for our branches of the seldom is agreement best became the nd case which is called the enforcement action there was no reason but there  were tourney's fees awarded on the st action are not on the appeal of the st action because the issue that i just articulated because they tried to argue that i couldn't address their breaches but the settlement action in it's in and of itself was filed the opposition brief was filed the reply brief was doing december i mean in jan in february of two thousand and nine and had i filed it on time it also would have been prior to the filing of the bankruptcy protection in march two did the homeowners association and tell and tell they went in to seek a reopening because of the attorneys fees award did they ever and turret try to enter into the bankruptcy proceeding to say hey we may have how i had been driven into my life had been obliterated by their actions and that's why i ended up in bankruptcy not because of your conventional ideas of why we end up in bankruptcy and so all of that story was in all of the attachments to all of the they all of the deadlines run two weeks later after the order the coating order was issued in the bankruptcy they filed a motion for fees and went after me in state court and i apologize my opening br it on my own and when they decided they didn't have to mention to mention the discharge when they filed a motion for attorney's fees i thought it wasn't supposed to be so then they turned around seven years later and filed the adversary proceeding and blame  but that bankruptcy judge did and found that that that should have been raised or could have been raised and in the state court proceeding that is i'm sorry i am what i would like to it sounds like it was not raised in the state court proceeding and it absolutely was not raised and that was yes the bankruptcy court it went by the two cases that were cited by newport crest on that particular issue and my opposition pointed to go roller saying i can't waive that just you know and there are cases it's a it's not when they go after me and it's in violation of the discharge order it's not my responsibility because what they did you see turn around and then they're briefing in the bankruptcy court was replete with them saying i load them into believing that i was never going to argue that it was just hard somewhere down the line but the bottom line is it's seven years later and when they filed that motion for attorney's fees they didn't unilaterally two weeks after the bankruptcy was closed without any people work in the bankruptcy court disputing the discharge of anything and then a blame to me for everything i did after that and i didn't know because they were the high powered law firms law firm and i attorneys i think the best thing for us to do now is to hear from your adversary and then you have plenty of time to respond ok thank you very much thank you well i think at that point the matter was being handled by another law which did not handle bankruptcy and i think that perhaps they did not recognize that if a future e correct let me just go back to the question you asked me before about the claim filing although it is the radically possible for a claim to be filed in a bankruptcy case by the homeowners association in a case like this where there are no assets the trustee doesn't even send out a notice to creditors to file claims because in the us there are going to be assets administer filing claims as meaningless act so another reason they may not of file the proof of claim is it was an elastic case and unless there is some reason why she was required to rollover at that point it was certainly foreseeable that the case was going to continue it was the same case well no there is a reason why she should roll over at that point because  any liability on the part of miss adams for attorney's fees could have been discharged right kind of the distance had an election where she could stop the litigation and then it's up to discharge and go on her way or she could return to the fray and continue the litigation in which case any attorney's fees awarded begins for would not be discharged and the underlying policy for that in bankruptcy and it's a good one  are not permitted to use bankruptcy as both a shield and a sword they cannot say and i thought that in the other cases there was a different litigation that was instigated this was not different medication was the same how do you distinguish where it was the same case i think that it's very distinguishable your honor that this case appears to be much more like a bar to me iowa and some of the other cases that miss adams relies on such as brony there was an agreement that litigation would go forward and that was part of the plan and it was in trouble into what claims the creditor would have against the bankruptcy estate so therefore there was absolutely contemplation by both of the parties that those litigations are going to go forward here it was soley in the debtor's discretion there was no agreement with the creditor and that's what makes this situation much more like  siegel moving to the claim preclusion argument it is a it is dry you agree that well actually st before we get there on the return return to frank is there really a dispute that you st saw this litigation on going i mean there was no assumption on the homeowners associations part that she was going to drop the case there was a like a new claim that came up or anything like that i mean you you knew the debt that the case was going to proceed even after litigate she declared bankruptcy well i have no firsthand knowledge one way or the other i must admit but at that juncture the litigation the st lawsuit that miss adams initiated against newport bankruptcy had been filed that is correct it was fine there were no assumption that that was going to go away or magically disappear well that's not necessarily true because the state court held that case in a benz pending resolution you minds your well yeah i mean but then then then the case was clearly on going well after that appeal was resolved and that's adams to continue to prosecute ok moving on to the claim preclu other things are we do you think that here the claim that the fact that she could have raised it in the state court proceeding and didn't operate it is as a waiver or do you think that claim preclusion is treated as a separate separate theory then that waiver i just want to flesh out what your argument is on the claim preclusion from bringing it that issue in bankruptcy you don't think that that was tantamount to waiver it's boy the effect is very identical i would say but i think that the  basis on which the court ruled was that a party is required to assert all claims that can be brought in if they failed to do so it's issue pr and just finally the jurisdictional question is seems to me just correct me if i'm wrong that comes down to there if you have an award you currently have an award for one hundred and forty two this question the only question right now is the state court has has now since the nd case has said we're going to wait till this all gets worked out through bankruptcy to determine whether there's a set off here or not is that i honestly don't know the answer the question so i won't represent otherwise i'm just trying to figure out why the bankruptcy what you're asking for here it seemed like you were asking for the bankruptcy court to decide how these two cases fit together and whether there could be a set off based on the existing attorney's fees that that's exactly correct it least under at the very least we thought under mental jurisdiction all the all the factors for the court to make that determination were there you know it it would it just you know if one party is owed one thing and the other party is owed another thing you know setting that you off against each other while i guess my question is why shouldn't i just go back to the state court the state court has issued an injunction excuse me issued a stay to allow this to be determined by the federal courts where why isn't the state court in the best position to apply california law or whatever the case may be on how these set office could apply well i think the underlying question is the holy bankrupt rhapsody question is a must be answered as a have jurisdiction to do that and that i'll be honest it seems correct with the bab said there and i'm trying looking for what your rationale is for why we should step in and do something more than just decide the st two questions so i will address simply that the supplemental jurisdictional question and i think that the arising in and arising under i'll have to leave to my brief but for there for a court to exercise  supplemental jurisdiction one consideration is simply judicial economy i mean this case has been going on in one corridor or another for thirteen years if the bankruptcy court can make a determination and get it over with that it would seem to be in the interests of the federal and state judicial systems and the parties it's also more convenient unfair there are a number of bases why a court can decline so it's all part of the you know the same common nucleus of operative facts which is the final factor ok so i have several scattered kind of issues that i wanted to address in answer judge nelson your question about why the state court has stayed that pending post trial motions it's because it's waiting for the determination on discharge not on set off by but in the motion that was filed by newport crest at the state court level they mentioned set off and then they came in their adversary proceeding made a big issue here but it who and then we figured well so if i could clarify a little more there's one motion that they filed in state that newport press filed in state court to say i need this day we need to stay we're going over to federal court to challenge the discharge and we are and we do deserve a set up so the issue was braised in state court they just didn't start addressing it yet just like they didn't address any of the other post trial things so it is it well i don't i don't know if we can say it to issue but it was raised by newport stop all that they used to preclude my my counter claim for the breach of the discharge injunction newport quest cited to two paces none of which were  presidential moon and scott were there two cases and those those were those cases ideas differentiated the nature of those cases as to why they're not a political at all newport press failed to come up with any case law that supports his position that because i didn't raise that i forever raised the right to claim the discharge and what that does and i think i don't know whether i meant in this in the brief or not but what it does is it kind of invites creditors to say ok we're going to file a motion for fees against the debtor and we're not going to mention it and if the debt it doesn't know to mention it then bay for ever waived it and that doesn't seem to be consistent with the policies hearings i'm sorry have to read my script notes here and then my understanding is yes i am going to answer the other question that you were posing opposing counsel did they know that the enforcement action which involved the breaches did they know it was continued continue continuing they absolutely know it was continuing and may never blinks in state court say hey she's not allowed to go forward because it should have been included in bankruptcy that was never raised there and according to all of the record that i reviewed and i couldn't find anything that gave me a different impression they trustee abandon the enforcement action to me me and so that under no circumstances could should be or could be considered a return to the fray because it was abandoned to me and so i got identified three accept they accuse me of as constituting the return to the fray one filing the late reply brief right after the petition was filed two opposing their fees motion ok that they found out after i got the district and the three was all of my activity  action there calling all about the return to to the fray and the record indicated to the trustee abandon that case to me and one of the most important point ok great oh and with that cast of leno you asked opposing counsel about whether that actually applied and they did know i know that they're opposing briefing says will lead to chapter eleven or chapter thirteen case but when you look at the reasoning behind it and two other chapter seven cases have applied cast of lino reasoning and the the fees were in fact discharged as everything indicated to me that they were if they were that mad award that was issued on top of the motions that we went through because they filed our day hearing that they when we went through because they filed case just argued is submitted for decision