about homestead is valued when the debtor is seeking to avoid don't mean or judgment lien and the home located on the homestead has been damaged by fire and there are insurance proceeds on hand for the exclusive purpose of preparing the debtors property the bankruptcy court opinion charged on how to value missile years property the court determined that the pre restoration value should be used exclusive of the insurance proceeds of the bankruptcy court bankruptcy court when it valued missed four years homestead valued it add the value of the bricks and mortar about remaining home on the day of filing without consideration for the correction and your client did not have a lien on the insurance proceeds that the proceeds were already out of the hands of the insurance company and on but your client did not have a lien on the insurance proceeds and no i did not but it right but let me ask you this and i know there's a stipulation out there that the insurance proceeds were required to be used to rebuild the home but is that accurate i to the money and walked away and moved to a different state i don't believe so i mean i believe the home owners insurance policy now believe that the debtor was stipulated to that was for the ex face value i don't understand it but i can honestly tell you i do not either judge paul dano i don't all i know is that that was the way it was let me ask a slightly different twist on that was the d obligated to use the proceeds not understand that the daughter according to the stipulation and i don't understand it either but according to the stipulation that are could only use of the pros are insurance proceeds to repair and replace was done under an obligation to repair and replace what if they're just walked away then the insurance proceeds went back to the insurance company the debtor doesn't get to keep the benefit of the proceeds i understand but that does not affect your argument that they're inseparable from the reality of the situation if he did repair the property i abandoned by the trustee correct yes and nobody objected to that either right correct the record clear the trustee was aware of the existence of the insurance proceeds he was aware of the existence of the insurance process and did not attempt to administer them for the that's what we need to consider if the entirety of that bundle tell me something just before the bankruptcy case was filed the debtor owns the property it had been destroyed the debtor had the insurance proceeds right correct if the debtor had tried to sell the real property what w the debtor of gotten for it the dead only in this case that is a very difficult question ok but we can look to missouri law to determine if the debtor had a preexisting sales contract at the time the property burnt down she would not have gotten i'm not talking about a preexisting sales contract before  was burned down i'm talking about the situation that existed on the date of the filing of the petition if she had attempted to sell the real property what would she have gotten for it well given the fact she could only use this property for the insurance for the purposes of repairing the property i'm assuming th market value of the property as repaired because the property could all right as repair the buyer unless the buyer actually bought the insurance proceeds as well the buyer would not get the insurance proceeds if the buyer was just buying the real property was not correct in the state of missouri five a contract with you your honor and the house burns down the day before closing once again you're assuming a different factual situation but it's analogous because in that case the the seller be obligated and that was to repair the property ok let me ask you a different question suppose that on the day right before the date of the filing of the bankruptcy petition your client had for closed its judgment lien what you think they would have gotten in that case it's pretty the mortgage company or been paid out that's a different issue i have a right to garnish those i bike those claims just like any other judge but only predator but that doesn't affect the value of the property that's the problem we're struggling with here and it goes back to judge your rights as a judgment liam creditor correct correct but we're talking about hypotheticals here your honor and hypothetically you've asked me to posit what i think would happen when somebody is not that hypothetical when the when the  obligation is to determine the value of the property on the petition date and on the petition date there was a pile of burned out bricks and over here was some insurance for that i understand i understand your argument believe me i'm trying to get to your  lien i'm afraid judge da may have stole some of my office from my opening lines but i i think what we really have here is we have two different assets we have the home which was stipulated to be an into burned out condition on the date of bankruptcy work thousand dollars and we have an insurance policy i too found the language a little awkward as to whether the insurance policy did go that far but the most important part in this bankruptcy case found that insurance policy to be an insurance policy the law but one thing and that is to fix up the home when this bankruptcy case was filed an insurance policy became property the bankruptcy estate it was the trustees proper at that point in time it's not the debtors anymore it was the trustees the trustee conducted a thorough three  dollars option out there lot of a lot of risk for trustees deacon's a trustee myself i'm not so sure i can quibble with ms brown decision to walk away from this one this was an eight hundred thousand dollars house with a policy of that type different story but were these type of mon involved that could spell disaster for a bankruptcy trustee trustee so what could have happened is the policies proper this state and this brown administers upon it if she did determine certain as she said she did that she had repaired how she could have done it sold the house and paid creditors and given this orders for fifteen thousand dollars and center on her way what also could have happened is the creditor again a lawyer who had been practicing law for around forty years could have gone ish th by the bankruptcy trustee and if she chose not to then be able to survive the bankruptcy case sure that would require some some cooperation by the debtor to assist with the rebuilding of the home but let's face it when you are as the record reflects  an elderly woman who is a server at denny's that fifteen thousand dollars probably would have been a carrot enough to work with the creditor at that point time to get the property repaired and sold for the benefit of that creditor and the debtor but that's not what happened here we are faced with what happened it is not hypothetical what happen in this case is there was a fire in november a judgment january and a bankruptcy in february and we had a home or six thousand dollars  determined by an appraiser that we both agree upon and judge rightly so there was no question that at the petition date that was the value of the home ok but their argument is not that you say it's valued on the petition date that's fine but that doesn't really get you to where you want to go all by itself their argument is the value even on the petition they should have included the insurance proceeds and they argue as an analogy all of these other situations cases they've cited that it's included if you're thinking about exemptions are in other contexts the cases seem to say that it included so what's your basic response to that position that's there critical position right everyone is entitled their argument your honor that contract where the building had had burned post contract pretty close even when there was insurance proceeds and here we're dealing with a twenty thousand dollars contract and a ten thousand dollars insurance proceeds the question is what happens that contract can be purchased or compel that contract to go forward and wipe off the insurance proceeds or as the seller argued if they want that contract to go forward to they have to pay the full twenty thousand dollars for it and the cour question the mature case which which she seems to think is close to being on point well because the problem though with the cases with that like mature is that i think material and its cases deal more with exemptions the proceeds of an asset which has been destroyed we're out here we're dealing with valuation there's no analogous type argument i agree that if this was a vehicle worth ten thousand dollars in the data bankruptcy and something happened at vehicle post bankruptcy or even pre bankruptcy of those ten thousand dollars check that that is the proceeds of the vehicle that's not exactly what happened here for example purposes not to mention the fact that we're not trying to claim exemption on this entire piece of property that's not what we're trying to do here she'd be correct if i came in and said your honor we get an exemption on this entire piece of property it's one hundred percent exempt including the insurance proceeds that wasn't the argument because you're dealing with two different races here you're dealing with the property itself which judge run when valued six thousand dollars and the insurance proceeds so had a property been repaired on the data bankruptcy i think that she's right there that we can only example fifteen thousand dollars still but it's very important that part of the problem here or at least part of the concern is that there is a hint that this is just not fair that she's taken the money and running if she did repaired it before the bankruptcy there's no question but the asset would probably have been administered instead she weighed file then avoids the lien and then uses the proceeds to repair the property to get it up to a value where if it had been that on the day before the bankruptcy filing the lien could not have been avoided in its entirety and the property might have been administered well i'd be happy to talk about the for her grandson who is going through a custody battle with mr lott waltrip law firm and was sued as a result of that she had poor legal representation signed a consent judgment and while the record does not necessarily reflect this clearly she did not take action to avoid this judgment when there was an argument advanced in the state court that a consent judgment with a stay of execution is not a lien so she was the victim of poor representation not once but twice if you take conversed lee our creditor here a sophisticated lawyer who's been practicing law for over forty years he may have been before this court before i know he doesn't bankruptcy work this lawyer let his judgement lean attended three hundred and forty one meetings and waited and waited until our waitress at denny's finished nine years post post discharge and i thought well we got one here if ever there's a latches case and jets red states i think correctly ruled that that yeah it's been a long time but the circumstances haven't changed nobody was harmed by it being a long time in this case we really only have fourteen months from the date of the filing and less than a year after the case was closed and i think it's even less time than in re hall which was judge case in that thing so i don't believe years i think in home so we have to we even even less time than that so if there had been some harm to the creditor here then i don't think there's any argument he made that that there's latches the only harm possibly is that he got excited over the fact that the property had increased seems to be the usual argument that i see in there with regard to attorney's fees and costs you'll note the joint stipulation of fact we agreed that there were certain attorney's fees and costs incurred in connection with the execution sale kind of commonplace in the eastern district of missouri judge rendell and recognize those attorneys fees and recognize those costs and invited mr walters law firm to file something with the court within fourteen days to have those attorneys fees and costs assessed for one dollar reason or another they chose not to do so i'm not sure why i don't know if it was a concern that perhaps that would somehow make them acquiesce to the order and give up some appeal rights but whatever the case may be they chose not to do so but instead use this as an element to try to attack judge reynolds order and try to kind of turn it i don't think it works that way avoidance we should've been awarded our fees there is a line in the order that says we can ask for them it doesn't limit when we can ask for them i assume i can still go after them now after the appeal is over when you mean it doesn't when i thought it bankruptcy court that addressed the issue of insurance proceeds when there is exempt property bankruptcy court acknowledges that the debtor may examine those property those insurance proceeds as if they were the property it  them as part of the whole it to me this was not a question of what was examined it was a question of what is the value of the property on which you had to leave in which the debtor was trying to avoid would be willing to pay for the property yes but then the debtor would not have gotten the benefit of the insurance proceeds which he did that's not the issue ok let's go to let's go to bankruptcy is to provide the debtor with a fresh start not a head  i apologize you're out of the my point being though she got the benefit of fully restored home she got the benefit of a complete discharge so basically she has a home and she was twenty seven thousand dollars on this work one hundred and nine thousand dollars that's not there and that's a really odd position