this time here in reno dynamics concerns one is the counter claims and certain defenses were never resolved so i have not been do they relate to the claim for the seven hundred thousand b they  before us it doesn't it doesn't resolve the case that's one concern i have a second concern is the district court remanded the case to the the bankruptcy court and that also seems to me a potential impediment to appellate jurisdiction i understand the issue the bankruptcy court did certify its decision as a final decision but they didn't really give reasons for that certification that are enough to convince us that this is a final judgment the review so all it says is there is no just reason for delay but then it says that successful peel unsuccessful people would moot out so i really wonder whether it was right or whether there's a sufficient explanation for the sort of the fusion which we've acquired so we can't we don't just take counterclaims and from the fences if i said it was crystal clear i wouldn't be telling you the truth i've i live with judge kaplan certification that the matter is final it seems to me as to the matters before this court as to the trustees claim but clearly not counterclaims the decision is final what is the benefit of support it ultimately says i apologise what is the benefit of proceeding with this part of the appeal if it's not going to resolve the case in any event and in the counterclaims and affirmative defenses will need to be resolved anyway i mean what what is the point of this whole exercise this this exercise will decided i can't i can't i can't say that a decision on this will one way or the other decide the counterclaims then direct and it could be remained the counterclaim for example with respect to that's clear correct we don't have jurisdiction and you're not really arguing on this appeal concerning the rescission michael that's right now on the other hand if if you lose musician is you never has to be decided am i correct that's correct though i think there will souter claims so that may have to be decided because the the defendants are claiming damages as well and they're kind of beyond the river but i just said if you if you move this rescission issue goes away correct that's correct and then what would be left of this case uncommon for there to be to lock you to repeals in the bankruptcy court bankruptcy court couldn't function otherwise because each of its matters can consist of one hundred subsidiaries and in this particular case i think does yes and this could be one of them yes so the question is if if the district court can entertain and then we can entertain into aki torrie appeals from the district from the bankruptcy court is this the kind of into an interlocutory appeal that we have jurisdiction to decide the best i can tell your honor is is and i can't pretend to understand that we're trying to work this through to learn but my daughter clerked for the highest court of the state of oregon and i think she faces all the time if she were here she would answer better than me you can come you know that the starting point is i think when the bankruptcy court says it's final for public purposes i'm not i'm not going to risk have that if the district court remands the matter to the bankruptcy court the dischord didn't do was i don't know whether there's a separate requirement of a fifty four b certification and district court but we don't have that i don't know whether one is required but we have a from the district court back to to the bankruptcy court so how does that impact our appellate jurisdiction well i know that the district court neither issued its own fifty for the certification nor withdrew the bankruptcy court certification of bankruptcy court nothing more than an arm of district court of course so i mean is it crystal clear to me as to whether the fifty four b certification continues on in the absence of affirmative action by the district court it's not crystal clear to me but it seemed like the chances were good enough that it did that it shouldn't risk of going to appeal based on your your instinct a gut feeling i mean is there any law on this that not that i'm  corporate are going to give you honey you're going to give the trustee hundred seven hundred thousand dollars and we're not going to get anything and that's going to be the order of a court of equity yes because because in in the ordering and bankruptcy court if it does anything it orders who takes a loss ok so we we know that always equity takes a loss before creditors take a loss even if this were straight up damages and they paid seven hundred thousand when they be entitled to some kind of a credit or set off for the whatever the value of the stock might be the question is what if it works if if if if the company doesn't actually tender the stock but at seven hundred thousand shouldn't they get some kind of a subtle offer whatever the value of any of the stock might be at the simple answer is that a preference lawsuit which we see hundreds of times more frequently than this may be thousands of times more if the defendant in a preference lawsuit is required that was standing the fact that it's already out money required to pay back to the trustee even more money because it received it preferentially in the ninety days before the bankruptcy it gets by statute and allowed general and secure proof of claim in the amount it's required to pay back but if at  worth ten cents on the dollar the matson's would pence let's say it's fifty cents an hour let's say what the trustee has after the breach is worth three hundred fifty thousand dollars or damage claim will only succeed for the other three fifty  breached april first two thousand and after that you continue to lose money from the smiths and issue stock exchange that's correct and what the as i understand of the district court determined was that argument that a contract does not have to be terminated for there to be a cause of action for breach and judge kaplan gave an example of that if a tenant doesn't pay five or ten or fifteen months rent in a row and the landlord bankrupt and is unable to assume the contract because generally chapter seven trustees have no power to assume contracts period the damage claim against the tenant for failure to pay the rent having accrued fully all elements of the cause of action having existed pre bankruptcy the trustee has standing to sue and on the other hand the tenant live there that's right the time they got something and this this defendant got the opportunity and i guess the wait their position got the opportunity to throw away seven hundred thousand looking at it in perfect retrospect on a new company's that's often the case if you happen to hit google it's a little different you know so hindsight with respect to this kind of situation is perfect i was if i can finish by just quoting a fifth circuit decision from one thousand nine hundred six because it's quoted by the defendants in their motion for summary judgment it is quote it is clear that causative action belonging to the debtor prior to the bankruptcy constitute a state property and that section seven zero four one of the bankruptcy co grants bankruptcy trustee the authority to pursue such causes of action so all we're saying here is that those causes of action fully if they fully accrued as of april first two thousand and nine the first day after the deadline for performance by the claims against my clients are dead are affirmative defenses don't matter at this point there is a final ruling on the claims that there's not a final ruling on the counter claims but the counter claims should be bifurcated there should be uses should be ar themselves by the trustee are final things no we are not withdrawing the counter claims we're keeping them there for now if for some reason there's a reversal then we want to use those counterclaims for a subtle off if there is an affirmative the lower courts as we hope there will be then those counterclaims will likely be have to be pursued through the perfectly process and not in the context of an adversary correct although currently there in the context of never seems correct but certification becomes appropriate if the resolution of this matter of this could move to the other aspects of litigation think so your honors we asked of the district court decision be affirmed and i think the district court something said something very profound it said what matters here is not is what the debtor did not what it could have done it matters what the debtor did and what much of the opponents arguments are here are an effort by the trustee to create an alternative alternative reality detach from what actually happened and what happened here was the parties ignored the march thirty first reach so if there's a terminations that is an opportunity for the debtor to make the contract not executive ory anymore the debtor would no longer have performance if there's a breach than the debtor could arguably still have performance obligations terminate money right and the district court correctly said there was a good reason for that it was a good there was a good reason for the debtor to ignore the default rights that it had because it brought in another one point three million dollars from my clients in the process and now it's completely inappropriate and fortunately against them the legal authority we have as we've cited for the debtor to go back and try to enforce the breach the debtor has waived the right to enforce that breach the debtor has elected its remedies and cannot go back to that march thirty first rule to really look to determine whether this is an ex recount as opposed like that countryman test is that what you're talking about judge what's the rule in the circuit judge this circuit hasn't clearly defined what the test is for an executor a contract there's three tests in play in the circuit i don't think it matters here  complicated well here though it doesn't matter what test you apply because there was future performance here on both sides so that we define that as a contract in which performance remains due to some extent on breach of wire why can't it just be an issue of determining the damages but we can't change the facts judge even if to to heaven in forcible breach the de needed to act upon it it needed as a district court said to declare a default file suit on the default take some steps to enforce the default instead the debtor intentionally neglected those rights and that has consequences and by the way judges that's a factual finding here by the district court it is a factual finding that the debtor ignored those rights and in this court should respect that factual finding finding in what procedural context summary judgment o meant to say yes yes so judge what the two lower courts correctly recognized here is that the factual record is clear and the factual record clearly shows neglect of the breach of rights now the trustee can't come in after the fact and after by the way the trustee listed the contract as an executor you agreement in his petition can't come in after the fact and try and put another label on it and i think the lower courts were correct in their factual findings