appellant here we've asked to reserve three minutes for rebuttal if that's appropriate with the court yes thank you i began by saying we as appropriate unsatisfied to process secondly that issue was raised appropriately before the bankruptcy court and was not waived as the district court found when it failed to consider that argument in the initial peel to the district court and finally that the bankruptcy court and district court aired and failing to follow an earlier ruling  the th circuit in which publication notice approved and the orders busy of sale and the orders approving confirmation of the horizon bankruptcy plan were approved the relief for that we're asking for is that he court reverse the bankruptcy court and find that publication notice was appropriate and satisfied due process so if i can i like to begin with that st issue which is why publication notice was appropriate and should have been so found by the bankruptcy court to give some context we're talking about a bankruptcy case that was filed in two thousand and two and confirmation and sale orders that were approved in two thousand for those orders approving the bankruptcy sale of all the assets of the horizon debtors and confirming that was liquidating plans had typical orders of confirmation and approving sale in many bankruptcy cases that is there was a broad and expansive sale free and clear of leann's incumbrances and interests and in order in proving that  the order of sale in confirmation also included an injunction against asserting claims against the purchaser actually there were two purchasers it also made ordinarily there is a strong interest in finale in bankruptcy proceedings is it your contention though that the strong interest in finale would extinguish any claimants due allegations made by the baker years would be accepted as true and the bankruptcy court in keys and bankruptcy appellate panel as well as six circuit took the case with that in the factual record but there are the district court said that the non leasing areas were no right that they that they were a no you know you don't argue that  sorry you're correct we're not making that argument in connection with the old n t but we are saying is that the claim there is contingent speculative and future because the nature of the claim itself  would only come into being if multiple contingencies had occurred namely that there would have to be a decision made to mine by the owner of the coal reserve and secondly and the point in time when that decision is made seeds so mr shared these contingencies apparently did occur in as much as the claim now is for a substantial sum so a lot of that  we would say that you argue there conjectural and speculative it cetera actually am i right that they each of those did actually get triggered and therefore  warrants a large payment today and that's been alleged in the state court action judge i'm not conceding that anything is due in that case or that the factual allegations there are correct but it is true to say to to answer the court's question there was a lawsuit filed in two thousand and seventeen making those allegations that the contingencies have occurred but the question is when this decision was being made about the appropriateness of publication notice it was tw to advise them by something other than publication existed and that would be conjecture what it i mean we know who they are and that they still were in business  interest in the land even if we might not act on that land we saw the present interest in the land and so you needed to notify us give us actual notice now you didn't brief that question here they say it's a covenant running with the land you didn't you chose not to brief that question in just to rely on your brief for the bankruptcy court but if they're right about that that this is a covenant running with legal issue that is undecided and we point you to our recent bankruptcy court that's correct it's not it's not been decided right here in the question of l so if i think i've adequately covered to this point why it is we think the delayed rental obligation and the future falls within the publication on the grounds that it's contin jenner future because that seems to me to be a big distinction whether or not you have a president just and when you've cited us a lot of cases coming out of tort law yes you want to say present interest in land that is triggered by some future contingency can can be extinguished simply by notice publication and i'm wondering if you have any are are such that it's obvious that any confirmation or after eleven plants slash liquidation affecting the rights of claimants is radically different from a confirmation or are affecting a three hundred and sixty three s a zero under the bankruptcy code under the bankruptcy code under three hundred and sixty three s there are a number of procedural hoops that must demonstrate that all been conducted in a type of big salmon nation of the records of their own records or the records of the hamilton county recorder's office even the demonstrate that that finding the fact was clearly erroneous in fact what the record demonstrates is that even the minimal amount of effort by old bin or its bankruptcy as a result they had to know the bankruptcy court house could all been not known about the interest of illinois messing it is that they don't really argue that point they don't dispute that they didn't bend are alliance now alliance doesn't dispute that all band knew about methane existence and that there was this i suppose they would call it a personal contract  but they don't dispute that they just say the nature of the agreement was such that it was so unlikely so speculative that it would that payment would ever be due that they didn't need to notify you i disagree with their analysis judge because if you read the context of the old bindi the obit indeed clearly made the covenants contained is there  in s cousin it's running with the land they were both a benefit and taper to the cold state as well as a benefit and burden to the methane gas to stay those rights were property rights those investigation is required and here alliance provided no evidence whatsoever of any diligence to determine the rights and give ellen when that thing appropriate notice so in this context what alliance is doing is trying to conflate the value of our rights with something being speculative the value may not be determined but our rights were clearly fixed in the deed that was a matter public record which old ben was a party they were in pretty with us and even highlight if the court looks at the d lexington coal acquired from the bankruptcy estate that deed was made expressly subject to all matters of record prior to the grand tour a party i think the courts inquiry about an easement is exactly on what an easement can be of record even though it may not be used it's still a real property right and if you see that through the court system without due process the laws clear that kind of an order is void eben isha it doesn't affect the bested property crimes and that's exactly what we have the city had a development met on a particular piece of property the developer filed bankruptcy the developer had a three hundred and sixty three s a zero without no dispute and there the work said no that doesn't count even whether we call it a covenant running with the land or a personal covenant it is still a property rights and you can't affect a person's property rights without due process and here dollars was within the old beenz records that kind of thing tells you that with any degree of diligence alliance predecessors being obedient an g i could have notified illinois methane of the transaction and the proposed sale but they chose not to before the bankruptcy court you know alliance argued well it's a big case it's a complicated case there was expedient involved the district court and the bankruptcy court both found that the complexity of the case expediency is no excuse to trap on somebodies constitutional rights it's a matter or property interests that need to be protected in fact if this court were to sustain what it wants it's arguing it effectively creates a row that says well when it comes to real property rights you don't have to check records out you just forgot to read the new york times or the wall street journal or whatever was published and that's simply not the wall i mean if you go back and look at the tulsa professional services versus that in this particular case alliance is completely wrong alliance also argues that you know our rights respected at the well they weren't they were bested in the d they were clearly of record they cite the xo communications  and you know what cases struck with in the sense that the debtor filed bankruptcy and at the time they filed bankruptcy they checked their records and determine the allergen had been a party with whom they had proceeding it determined that payments that halogens had made to the st debtor were within the five hundred and forty seven preference and there the court said well that preference right was speculative because had no right to go back and get the st better in this case our rights were fixed they also rely upon the nice case to say that well it's race judicata that was their opening argument sufficient that's radically different from the instant situation where not only is our interest of matter of public record but it was within the records of all began as in possession of the debtor and it's even further highlighted by the fact that within the bankruptcy record the hamilton county treasurer's office was given notice of the chapter eleven proceeding because they were notice is appropriate and you just can't close your eyes and pretend we don't exist and that's exactly what my ass would have does or so i submit to the court that within the context of this case its rights were fixed and accordingly we asked the court to affirm the district court ruling which it from the bankruptcy court ruling finding that alliance failed  i think that's clearly erroneous on their part and the both the district court and the bankruptcy court decision should be affirmed i think the courts are there to questions it appears not there couple of points here st of all i want to reiterate to the court that the bankruptcy judge limited our issues and our hearing to three issues including the one as to whether or not this was a comment that runs of the land she told us not to address when we were going to be a paper weight not wrapped up due process question or did you say i'd like to one of them being that this is a covenant that runs with the land and we responded saying it is not a covenant that rests with the land and then judge weiss says we're not going to address any issues those issues we're only going to address abstention can subject matter jurisdiction and the notice and not to address those other issues that's why we didn't address it in the appeal you know the point i want to raise was that nice maisky let's go back to if you're addressing notice what kind of notice was required you got to address the issue of what kind of interest methane has i understand court's question and i and my response response the nature of the interest itself being one of being in the future and possibly not occurring or amateur license at all is the thing that justifies  without giving actual notice surely you can see that so then we could have like an easement to come on to the land which maybe hasn't been exercised in a while you might call that contingent  remote because nobody's done it no while but it's still a present interest in the lands they have they own that easement right so so isn't the idea the nature of some the being or in the future just inconsistent with the idea of the party owning a present interest in land and if we find that there is a present enters the land then your argument about it being speculative or in the future is just but let me ask one more thing it doesn't it seems to me that the only thing that was speculated in this situation was whether or not oh  one of the interest was just as well have been nonexistent because they could have been drilling before the decision was ever made to mine or there could be no coal bed coal bed methane left so that whether that eventuality would ever occur may never materialize and therefore what's really if apply do why it's in this case it's really applying this reasonable