because alternately there had to be some requests to sue in this particular case the decision the judge thomas made was that he was not going to reach the bargain issue he thought that you could in fact bring a suit directly against mr schwab we think that's an hour or and they can aspect of the ruling that he made was he said he did not know whether the suit was against the estate or the suit was against mr schwab personally and so it is  we disagree strongly the button not does have two components on historical bases one it does talk about the court that appoints the receiver and there's some logic to that we do think that that is understandable why judge thomas got focus on that congress changed that scheme in the seventy's and fully changed in the mid eighty's the real difficulty however is that when you look at barton again it's arse about that it's there to protect the assets of the estate and we think that that t because you're going against the state for responsibilities of the estate at south of the estate would pay it is possible for a trustee to make a mistake i am a it's a successor trustee in a bankruptcy case i'm going to sue my predecessor for having things and so there there's some theoretical a liability against an individual trust that we don't see that mr schwab's done that and contrast what we think he did was that he went to court got permission to do certain things got the raw judicial immunity acted faithfully for the against the state notice to see jail and did all those kinds of things the bankruptcy trustee is responsible for cleaning up masses judge when title problems arise and or someone intractable when there are lean issues that are intractable alternately those issues get dumped in the bankruptcy court we sell free and clear wings kind of ignore the history we make some deals we do some things we litigate them if we have to but very often we make a lot of deals in the hall and so we try and get that moving on in order to be efficient administrators of the system we recycle property and that's what proscribe did in this particular case he needed to get out has articulated a little bit more about how they think the barton doctrine works and what the when you're exercising discretion how that functions you can look at the derive additional my unity doctrine you can look at the race your car issues you can look at where a case o five five five and five for a bottle ok so i just want to briefly address some of the issues sume in that part dr doesn't apply if i learned colleague argued and really specifically he had the one he had the one nail in the head i mean when these were sold they were sold with notice and this is a new movie have a section one there's there was no now what they're saying here is look we didn't have to go into court and object because this restriction was in place and were an intended beneficiary of this restriction in this subdivision plan which again we disagree with because if you look at the facts of the case they themselves initially when what happened here is initially the property was theirs forty lots he was able to sell the lot where the assisted living facility was located to the plaintiff in this case at that point the plaintiff specifically wanted this restriction removed the the  suppose that offending restriction and that states that fee title to watch own shall not be transferred to the parties having the residences constructed a ponce and lots title were main in the developer its heirs in the signs they could have bought the whole thing at that point if they wanted that to to remain they could have bought the whole thing but they didn't and what's clear here is they bought the one lot and at that point they were very insistent that they wanted this restriction removed and it was removed on their own motion now they're saying oh no weren't had a beneficiary because it's not supposed to be removed with these other lots the problem with that was they knew full well in the testimony i believe it was pretty well on disputed at the hearing before judge tom they said they knew that and by the way if you can't do a compact us might be interested in purchasing it so it's clear that everything that mr schwab did here was with the approval of the court and every one of these individual sales was pursuant to an order that judge thomas signed they knew about it they had notice about it they could have come into court to challenge it and they did at this point in a lot of buyer's remorse ron and that's basically what happened here they couldn't get the financing now all of a sudden it's mr schwab fault the person again who in the east in these economic times has to recycle the property so our argument is is is pretty basic and that is if orton applies which you clearly believe it does leave to bring this action against mr mr schwab was improvidently granted by first by the bankruptcy judge them by judge munley and that this the scorch of riverside thank you very much for every good morning i'm barry sawtelle and i represent c g i all the apple e in this case i am less concerned about the pardon issue than the the substance of whether or not judge thomas was correct in granting my there was when when mr schwab filed a motion to sell lot forty five to my client he disclosed to the court that there was this restriction in the subdivision plan and obtained a opinion of the municipal solicitor that because a lot forty five had never had a residence on it we have is a sort of a poor man's retirement community where we had a building that was assisted living center and then we had forty four says the mobile home lot surrounding it and the deed restructure the subdivision restriction said that the residential lots shall every held in a single owner and the township solicitor said the the lot forty five of the residential facility was never a residence and therefore that restriction doesn't apply to that lot and that's what permitted mr schwab to sell that property so to my client but when it and the court specifically in its order said this sale is free and clear of the restriction number one in the subdivision plan because part of the if most it was provided was this opinion of counsel when mr straw came back around to selling the other forty four lots he specifically filled to make any mention of restriction number one and when judge thomas approved the sales he approved them under section three sixty three free and clear of liens and converses but nothing in the that the motion or the order said oh and by the way they're free and clear restriction number one so what my client sees even if you've got notice and there are better it's not a municipal planning to fly so under under state law that's not the kind of in congress if if mr schwab if this was a single and subdivided piece of land mr schwab decided that he had permission to sell it and decided on his own without going through subdivision the process the whack it up into forty four lot he couldn't do that under pennsylvania law and this is the same thing so what like that so i was ok he's got permission to sell him now we go to he's any other land  owner under pennsylvania law selling these properties and he's got to follow the pennsylvania procedure and he followed a procedure but he followed the wrong one basically he in the township solicitor cut a deal and they recorded this declaration under pennsylvania what you do is go to the trial court record of equity and ask that based on change of circumstances in the neighborhood or other other factors to be relieved of that restriction and that's the point at which she would be in a position to say in a court of  with with knowledge of the of the facts this is why this should be restricted or the shouldn't be restricted so judge thomas never granted mr swop relief from restriction number one and that's why his his actions were authorized that's why he doesn't he doesn't get immunity what we presented to judge thomas was what we're required to do using under the burden doctrine which is to show that we've got upon the fish a case what i presented at that time was beneficiary of that because my client is part of the subdivision they are a beneficiary of that restriction and we have a file ation the part the properties were sold without any compliance with that which says you've got to five and in order to get good title to it and in order to comply with or in order to resolve questions or to get the title unresolved questions about the meaning of this restriction number one my client was an opinion of the township solicitor that restriction number one was never intended to apply the law forty five so the question was and that removing restriction one who out from about forty five no because if it never applied there's nothing to remove it  residents are constructed or maintained shall be held in a single owner and the fee shall not be transferred and what it was him big this is what it was and so we cleared up the  big by having the township solicitor say that was never meant to require that lot forty five and all the other locks be in a single owner and that resolve the the issue for my clutch title insurance company and allow the process to go through and also everybody else who might have been interested got notice because the motion and the order specifically said i am finding that restriction number one does not then entered into settlements to peel ations that basically said they would buy the lots and then he got those stipulations approved by the bankruptcy court there were a handful of them where he actually filed a three  two steps and all that mr schwab got from was permission to sell those lots in compliance with pennsylvania law he had to say you had to if he was going to sell the lots he had to pay the applicable  lots that were already subdivided he couldn't divide those up into more lots or combine them that would require approval and that's the stage at which my client would have been entitle to defend his rights in lax to county in a  people who were living on the lots and the sale of them violated the restriction now what more notice that you need were needed and we needed a proceeding where that issue was before the court that issue was never before the core you could have brought it before the court by object in that the sale is improper under the restriction to these individuals i don't believe so i think that the court may have disagreed with you that you could have brought it for the court could have done a lot of things but we didn't we weren't required to do that because that issue was not before the court and there is a process that mr suave could have gone through in order to do this but all he was asking for from the bankruptcy court was the right to sell these and it's hard for you to because the issue of restriction number one was not before the bankruptcy court and of course begs the question whether the back of stuff even has the authority to absolve that i would say that he doesn't but  i you know the question for the question as to whether or not you can proceed in state court is whether or not your claim is without foundation that's really what the issue is before us yes and and what it and we have laid out the essential and supported with evidence to central elements of the claim which is if there's a restriction there was a beneficiary who was aggrieved by that and it was a sale or it was a violation of the chance to object to this when the property was sold we're not going to hear this at this late date it doesn't that go to the question of whether or not your client can't claim is one without foundation i don't think it's appropriate for the prospective plaintiff to have to decide at the stage in the proceedings where we're asking for permission to flush out and litigate the entire case and it dissipate all the defenses and rip up all the defenses if that were knew that this was being done and it was clearly something you could have been done well done about i would say also i think there's a couple things at this point there's there's nothing in the in the in the case law that that lens even though long would require you to protect your rights to maybe counsel quinces for not acting reasonably to protect your rights once you know that this action is going forward who guard the the property but one  wasn't right because the issue was not before judge thomas nobody had asked judge thomas to deal with restriction number one when the sale of the forty four lots came before him and too there was another forum of how do you deal with the the mortgage holder who has a lien on this property from that standpoint we're going to we're going to we're going to take those impediments to your sale of these properties off the table by the way three sixty three works the proceeds of the sale of the lien of the of the mortgage attaches to the proceeds of the sale and we're dealing we're taking care of that so i'm doing as much judge thomas i'm doing as much as i can do as a bankruptcy judge to facilitate your ability to sell these watts by dealing with the the mortgage if there were municipal down the well or promises that were on the property but i'm going to take care of those things now you've got the ability as the bankruptcy trustee to sell these slots now you can go to state court and if you can clear your hurdles in state court particularly getting rid of restriction number one in state court then you can sell the locks i've done what i can do now you've got to to step two which is to take it into state court and get relief under pennsylvania law and that's what he didn't do there was no objection to on the part of my client to or i have a basis to say judge you don't have the authority under section three sixty three  authorize the sale of this free and clear of liens and incumbrances because he does i have and there was a another place to address the the the land development issue the restrictive covenant issue and that was in state court and that's what we intended to do and raising extraneous issues in the bankruptcy court when we weren't noticed that that was the issue the court was a court cannot do but not because if you look at the language and kissimmee is that it is the the best articulation of this and that says that the bankruptcy judge should go through  to balance the rights of the parties and one of the things he should consider is whether there's some kind of collateral stoffel issue one of the issues that he should consider is whether the bankruptcy court has the expertise to consider this issue or whether a state court does and one of the issues interests is the immunity question and these are some of many factors that the judge has to balance in order to decide whether or not the case should go forward they didn't raise the immunity issue now i think even if they had judge thomas there's enough on the record to clearly indicate that he would not have found there was immunity you get immunity really into circumstances one the trustee is doing something that only a bankruptcy trustee can do something in the adjudicatory function of the of the bankruptcy proceeding and that's not the case here he's selling land just like anybody else gets it so when the other circumstance where you get immunity is when the specific action you want to take was authorized by the court and that's the discussion we've been having for the last fifteen minutes they actually took selling those properties in violation of restriction number one was never authorized by just thomas so even if they're entitled to raise the immunity issue and i don't think they are doesn't get anywhere anyway because on the facts that action that if everything's true he can he can prevail on it doesn't get into or their defenses are there other issues because we don't have the opportunity to pursue all of that there's a lot of stuff that came out of that  that's factually wrong but we didn't have the opportunity to just discovery before that we didn't have the option to have all the documents we were able to say look here are the essential elements of our claim and here is the evidence to support that and on that basis we should be allowed to go for foundation of the doctrine may no longer be there congress recommender recognize the martin doctrine in an act in nine fifty nine a and how would this court this sub supreme court this lower court need a position to ignore congress recognition of a supreme court doctrine even though the that doctrine has gone by the boards because of the changes in the bankruptcy law i think that if they were going to adopt the barton doctrine or codified the the pursuit of the pardon doctrine they would have done it in in in three twenty three where it says a trustee may sue and be sued within the only applies to with a title that it's a part of it doesn't apply to seven and eleven his actions under this title in three twenty three it simply says the trust to consume and the trustee can be sued and if the congress wanted there to be some predicate to that that you have to make some kind of a showing in order to sue a trustee that's the place to put it and to a second purchaser clearly there was an there was notice to see g l if in fact it had an enforceable right if it had standing to proceed if it relied on the bankruptcy court ruling when  acquired property to say that restriction number one didn't apply to it at all so it now wants to be a beneficiary and not a burden with respect to this property i don't think that property relates to them at all it's sort of a factual issue here  necessarily have to he has to give authority to sell any property outside the ordinary course of business in a chapter eleven case from what no one should sell business we can continue to sell widgets i can't sell the building with absent judge's approval and  chapter seven case i can't sell anything without that you have to get the judge's approval to do a lot of those kinds of cells and so those motions are routinely file routinely brought the notice is given widely anybody who wants to complain about it chapter thirteen plan was held to be a prior judgment and the judgment works that way if you don't want a judgment authorizing a sale then that's the problem you have to come into court and raise the issue at that time there was sufficient to class about designer shoes that we've gotten to so this is a very different kind of situation i think that wow such roles attorneys may have thought that there was some effort to have to go back to sta court there was some procedure they were going to get answered the reality is that mr tribe as it started to clean up was a mess the economic circumstances behind this particular development project had lapsed and this was garages they got foundations they got a whole bunch of things that they couldn't have been changed the characters of the property evolved to a place where people were vested in their homes and so the character of whether the the this property had attached to the actually belonged to the back of zeus that or not was compromised this is the kind of mass that bankruptcy trustees clean up and