and what exactly were the dollar amounts and how did those where did those dollar amounts reflect you keep referring to it as a money judgment like it was like well it was comparable to and civil side actions so little they filed a request for contempt prior to your filing for bankruptcy but that doesn't mean the court when it imposed certain orders on your client didn't have an independent right to try to to make sure that its orders were upheld  that here we have we get into the distinction between civil contempt and criminal contempt criminal contempt is initiated on by the court on his own initiative and the case law is abundantly clear that if there's a criminal contempt the alleged contender is entitled to all that criminal due process protections miranda warnings the appointment of a public defender if warranted on criminal contempt is not governed by the automatic so yes i would absolutely agree with that but here the complaint that the the it's hard it's hard to say  again the initial filing by the commonwealth wanted to recover money that had been paid out by the commonwealth commonwealth as a part of their medicare  medicaid program to that judgment and the bankruptcy courts order specifically says that it is not granting relief on that front that's correct it's only the proces the attorney's fees that were expended by the commonwealth to try and get your client to stop his contemptuous behavior that's right his his refusal to cooperate in transferring the property back to the state his refusal to turn over keys is continuing to rent the property contrary to the court's orders is collecting the rents that the probate courts it belonged to the estate fact were they all it was and rhode island and massachusetts since the time we were that was that fact fact has never been resolved but the point remains he didn't obtain the property it was it was deeded over to his client and his client the commonwealth and the probit personal representative when after his client as well got a lot of money from him so ultimately if you'd ever is actually held liable for all this money then the gun there has to be some of what they collected from his client so  the ultimate ultimately the transfer tell the court that the bankruptcy court allowed the state court to fix the amount is an accurate while i believe the amount was already fixed but you know yes the back to court didn't get into the question of how much it out other than as was said earlier leaving out the discharged counsel and why isn't this the classic situation for kids to seem to worry about the sort of the police power exception isn't in this in this instance meaning the ability of courts to enforce or worse mean here you have a client who has as judge thompson setting forth has been disregarding over and over again also in supporters of the probate court hearing is about to begin as to whether he should be cited for contempt for that now on the eve of those proceedings he files for bankruptcy in an effort to forestall these court proceedings designed to collection of a money judgment they can proceed to the determination of the judgment but not to the collection and that's what congress has said we may not always like what congress does that where we have to go by what they said it and again i want to emphasize that this court has dealt with this issue before and the party in in the parker case though that case  decided after that discharge and it was it was post just charge activity to try to collect we're not we're not there yet which is why i keep coming back to court has allowed the of the estate and perhaps apportion some of the assets the available assets depending on priority to the commonweal parker this is just a very different situation than where you are in this case a trust and is owned by actually by its wife i'd have to go back and look at that but again the the bankruptcy trustee it's my recollection that he listed this home as an asset on his bankruptcy but as to the judgments themselves i go back to what this course said in the interest of an order that is answered by a state court in violation of the automatic stuff is  good morning your honour's may please the court my name is roger stanford and i represent irene schall in her capacity as personal representative of the state of fred kim at the there's no need for me to go into the factual basis judge thompson in the prior to this issue of this court laid out the facts in detail and was right on but before i start like make two points st of all attorney baker continues to say that this was a money judgment and he implies that both the state and the personal through the personal representative and the commonwealth seek to collect the medicaid wing the medicaid when was the responsibility of the probate estate and when the house was finally sold it after attorney teens continued attempts to fort at the commonwealth was paid a little over one hundred and twenty five thousand dollars towards one hundred and ninety one thousand dollars of medica in addition in judge thompson's questions to attorney big her she talked about discharge ability that day in addition to non discharge ability claims the adversary complaint seeks to deny him a discharge and there are cross motions for summary judgment under advisement and the basis for the denial of discharge is his failure to list numerous items in his schedules including his income from his law practice for the year he filed the bankruptcy and the two proceeding years in addition he failed to list a mortgage and collateral assignments of rents that he personally held on a property in dorchester massachusetts there are other examples but i'm going to go on the police and regulatory power as an exception to the automatic stay meaning the automatic stay does not exist as to actions to employ it to enforce the police and regulatory power however in abundance of caution in may of two thousand and eight our office filed a motion for relief from the automatic stay in retrospect i probably should have entitle that motion for determination that the automatic stay doesn't exist and if it does we'd like relief from the automatic stay about a week later the executive office of health and human services filed a similar motion i agree this is the classic case and the th and seven circuits in their opinions have indicated that the that the public policy of the bristol county probate court in being able to enforce its own orders and ensure compliance and again i don't i don't think you're being fair to a constant counsel in the sense he's not he's not arguing that the money judgment at issue here is an attempt to collect further on medicaid mean he is saying that the police and regulatory power to enforce its own orders and it portion of that unfortunate would be the imposition of above and incarceration which the probate court did pre bankruptcy filing in the sam burke of two thousand and seventeen and also to impose monetary sanctions as a deterrent to the  continued activity of the person who was violating kora waters what do you say to his argument that parker which which clearly sets forth the difference between a criminal that any efforts to put him in jail in order to try to get him to pay something that is dischargeable is beyond the scope of the  state or well st of all some of his contempt continued post bankruptcy filing he filed on january th and he continued  to lease the property out retain it he's never bothered to account to anybody for the rents collector rents in violation so to the extent that it's a post bankruptcy filing contempt that would not be dischargeable and his incarceration went just not for paying not soley for paying money but for soli when you look at the probate courts order in the corrected order in may of two thousand and eighteen talks in terms of violating direct orders relative to executing and recording documents listing the property as his own failing to pay amounts to under prior orders entering and trespassing on the property illegally changing the locks installing the new tenant he rented the property the court told him it wasn't his property any rented it and his continued effort after november th two thousand and sixteen when the probate court said it was not his property and finally i just want to point out that the district court affirmed saying that there was good cause for the granting of relief which is a different standard under review and it was ample evidence of good cause the things that i just indicated ca the automatic stay sought what you explained that to me was why would the district court of said that when it seems clear the bankruptcy court didn't poke the police power exception i was troubled by that your honor as well  t you're correct the district court did not reach that issue instead the district court went and found that because there was good cause for the granting of relief an alternate exit ground existed and that the us did not have to reach the issue of whether the police and regulatory power supply what do you or what are you urging us to do what w generally weak and it was nd generally read we were reviewed the bankruptcy courts order the bankruptcy court order said the police power and regulatory power takes it out of the automatics they granted us re and that added for good cause shown i believe was the language the judge in the bankruptcy court used in his order so are you saying that the for the comment for good cause shown was in connection with the police power determination or are you saying that the bankruptcy court decided under both three hundred and sixty two d one in the police car or section i'm not sure  i think the order maybe could have been a little bit more detail but i'll ask this go at it this way when you filed your petition did you seek relief under police powers or good cause both i only sought under the police powers however the commonwealth in their motion for relief from the automatics to use both grounds ok all right thank you thank you very much mr o'neil yes mr o'neill good morning your honour's paul t o'neill for the commonwealth of massachusetts executive office of health and human services and given the discussion i would just like to address some of the questions that the court has asked in reference to the last question eli h h s did request really in its motion for relief from stay under bull the police power exception and also for a good cause and it is in the record and it's very i believe that the u s district  court reviewed that as did the bankruptcy court in reaching its decision and i think that although the u s district court did specifically say that it was only reaching the good cause argument to support  s upholding of the decision that it didn't need to reach the police power decision i think it rightfully so called it up the one here issue i think it's within its discretion to do so when that argument is in the record it was in the estate of deceased members at no time have we attempted to collect but the underlying debt of one hundred and ninety one thousand dollars from mr cooper seen and as to the other question asked by the panel about that mr baker  repeatedly throughout this case has presented that to the courts involved as as what we are trying to do we are we have never taken any steps to collect that from him in fact the original suit asked for the house to be returned to the estate so that it could be sold to pay the debt and that is hamas help typically get paid we have to get something on here about the way the probate court and the state proceeded in the everything that was happening appropriate court was lawful i have a right to disregard these i'm all for worse i had the benefit of the automatic stay in everybody else was just regarding it seems like an odd way to proceed well in fact pre position asks and because of that he when mr cooper stand came in and claimed that the bankruptcy shielded him and and your honor i should point out he was sentenced already to thirty days in jail pre partition on   and that's why we did that your honor and as mr stanford pointed out perhaps we should have asked for a declaration but this is not a new position that the commonwealth has taken with respect to with respect to some of the other things that were a glass mr o'neill on one more minute thank you with respect to some of the other things that were addressed by the court it is the position of the commonwealth that there was no stay in effect so that they could be no violation were scheduled exclusively by the probate court which itself was exercising its police power to enforce its valid orders that had been ignored i would point out the appellant has also waived many of these issues on review he did not order a transcript is arguing that these are abuses of discretion a clear error is he can't do that under federal appellate rules of procedure can be without ordering a transcript indicating the official record he was ordering a transcript and never did so the as we discuss to the money judgment in the automatic stay the automatic stay if we look at in re spooky world which is heavily relied on by my colleagues it says that the fundamental judgment of congress is that protecting the public welfare and safety trumps the concerns that underlie the automatic stay a provision whose main purpose is to prevent some private creditors from gaining priority on other private creditors the commonwealth of massachusetts is not a private creditor all of the money that it collapse goes back to support the taxpayers of the commonwealth it goes back to support public property problem programs and important public programs that benefit everyone so clearly the commonwealth falls within that public policy exception and and the stay is not bankruptcy court you would have to treat it or you would have made an independent decision that you fell within the exception and proceeded accordingly without seeking any kind of permission on your own really  down the road in a case like that thank you counsel thank you all for argument in this case attorney baker attorney stanford an attorney and you know you should disconnect from the hearing