your honor slot hold on one second let them get their stuff together and get ready ok mr broker whenever you're ready disclose at the inception of the case that infected the proceedings and cause the record to be unreliable and as a result were seeking vacate or essentially the case started as a voluntary chapter eleven  and council came in for one of the main creditors and there was a motion to disqualify that was brought against that firm because the debtors had more than a landowning affiliates of the debtors in the principal the debtor had and allegedly the debtor had communicated with a senior partner in the firm about representing them a year before and neither the attorneys for the firm nor the court disclosed that there were some close working relationship so i think we understand the nature of the conflict you're alleging i think your burden here is to help us understand why it is that your appeal of orders was until after a final order and i recognize that that creates some difficulty and i appreciate the court taking this case on so that we can try and sort through it because on the one hand you have a principle of finale and generally as a number of the cases that have been cited you need to appeal orders within fifteen days and well let me i think i think you're right that there's sort of an uneasy tension about when you can raise recusal issues and when you have to waste post judgment on that but let me give you a possibility of how this case might be resolved and it's a difficult i think it's a difficult question for you so i want to give you my my thoughts generally speaking we've held that a final judgment in an adversary proceeding relating to a bankruptcy matter is immediately appealable or we have a number of cases that say that one of the late one of them is a case called you file a rule sixty motion rule sixty b motion with the with the bankruptcy court right the initial bankruptcy judge recuses giving a different reason but recuses steps aside goes on to a different bankruptcy judge that prank rips the judge rightly or wrongly denies the rule sixty b motion when that rule sixty b motion is denied isn't that the next end of the an appeal to the district court correct he or to hear well we tried to take an appeal to hear of a motion for stay pending review when the court dismissed saying you didn't have jurisdiction so what did you appeal to the district court we appealed to sixty be the denial of the sixty be motions so what happened there the district court affirmed and then was there an appeal from the district court to hear no no at that time there was a  resolution of the issues and they were voluntarily dismissed does that mean well that means that there was a settlement and and the case was dismissed and after that  client learned of additional issues that would that they want that he wanted to raise outside the adversary proceeding outside the adversary proceeding correct and so unrelated to the recusal well some are related to the and some are related to the to the resolution and so what we're asking is to be able to get back to the bankruptcy court and litigate these issues fresh but although i'm sorry go ahead you know so what orders outside the adversary proceeding one of the difficulties here is that i can't tell what waters it is that ok and i mean and part of the difficulty i think this may be a procedural difficulty for you is that we've said in back in the bankruptcy context you know typically i think in the what i'll call the ordinary litigation context you just get to file an appeal at the end of it like sucks up all of your locked doors along the way correct in the bankruptcy contact where finale is a little bit different and if something's final you've got to appeal it immediately we've had we've you know imposed a requirement that you tell us in your notice of appeal what orders are you appealing from the only order that you say you're appealing from is this final case closing order so what other orders are we talking about here right is it that you want to put before us ok you've you've  raised raised a series of thorny issues and so let me let me try to address them in series first the original request for refusal was not a sixty b motion it was a letter written by the principal of the client to the judge that was uploaded as a motion to recuse and the judge then recused on different grounds than the grounds raised in the letter and made some statements which seemed disingenuous as more facts came out placing a burden we think of disclosure on both the court and opposing counsel both of whom failed to do so and that's why we're seeking they cater now  it was after that that we learned some of these facts and so that's when we brought a and you know to be clear counsel who had represented my clients throughout the proceedings withdrew between the time the letter was uploaded as a sixty b motion and the time the court refused so months later i came in followed the sixty b motion and that's when the court said  denied no discoveries sit down you know this is offensive and made all those comments that i think there are something that this court needs to address just so i'm clear when you say the sixty motion you mean the sixty motion that you were discussing with judge jordan inside  adversary proceed recht recht so that was well but see that i take as a given all of your merits based arguments about the recusal issue and i assume for purposes of our discussion and that was not handled correctly i'll assume all of that but wasn't there an obligation for you to appeal that rule sixty b denial which included your requests for vacate or based on recusal related issues yes all the way up through here and if you did not why doesn't finality end this at that point in time so that you that recusal issue is not subside again within the final closing order of the bankruptcy proceeding right and that your question your honor and your question your honor are the crux of the procedural issue that i need to get over in order for this court to take a look at it and i'm asking the court to get over it based upon the cases that i've cited where the th circuit has said we're not taking up recusal until the case is finished and nobody then adversary the final judgments  correct and and we did we're not talking about we're not talking about the standalone recusal denial right or if i take it as a given that if that adversary proceeding were still ongoing and you or your client had learned what he learned and moved to recused a bankruptcy judge and that bankruptcy judge had said no i'm not recusing i agree with you you could not take that up on appeal  but once that adversary proceeding ended with a final judgment you then had to take that final judgment up and if you wanted to address and challenge the denial of the  motion that's i think the same posture you're in here now based on the rule sixty b denial maybe i'm wrong well actually what happened was the the adversary proceeding was up on appeal at the time that the letter was sent to the court and the the court's recusal was the same day as the affirmative that so so that that order that judgment in the adversary proceeding was affirmed by the district court and affirmed by this court before the sixty b motion was brought right but then you had the sixty beat in right and so the senate and make right and the sixty be  so so so so sixty b needs to be considered in the context of the overall bankruptcy that was going on at that time because it was a we're talking about a parcel of real real estate that was the subject of this essentially foreclosure proceeding it was it was couched as a declaratory judgment to you know determine and enforce the lien and so  it came to the proceeding as a whole so the our position is that the the entire record of the adversary proceeding was tainted was unreliable because the court made rulings in favor of the firm and the party which which allowed the presentation a trial to be the presentation of the principle as he was at the time and ignored anything that had happened before a fixed date so my client didn't have the opportunity to put on the case that they wanted to put on and the the the opposing party was able to look in a much more favorable light then he should have had all the evidence come out so that went up on appeal on an unreliable record and was affirmed on  e record and then we brought the sixty b motion in the context of the overall bankruptcy trying to get a sale stopped and we were shut down by the judge we tried to take an appeal and this court couldn't take jurisdiction  so so those matters were resolved that's another thing that we have to to get over and then subsequent to that resolution additional facts were raised which we want to raise with the bankruptcy court on remand to to set that aside but what what our position is is that because the we were unable to appeal on a reliable record when up we're on an unreliable record and because we are unable to do any discovery or have any proceedings in front of the bankruptcy court then we need to get in front of this court to get it vacated and sent back and it wasn't until the case was final that based upon the  merely a ministerial matter where the court acknowledges that everything in the bankruptcy proceedings have been complied with and the court is closing the case it's akin to a proceeding argument that for example you shouldn't have closed the bankruptcy case because there were still some assets that were not administered there were still some payments that had been made there were still some things going on that hadn't been finalized that  office obligations and the case is closed that's all it's not a prerequisite to other final orders in the proceeding be fine and so help me out still trying to figure out what what orders it is that that they think are tainted do you have a sense in your own mind for what orders it is that they're targeting orders that exist are there orders that exist outside the adversary proceeding that they think are tainted and that they want to appeal and if so are those orders up an issue that the final decree was in necessary element to the finale of prior orders and while i was preparing for oral argument i went back and surveyed every case i could find in this district  since the bankruptcy code was enacted almost forty one years ago and there the case law is legion of with regards to the finale of the of a variety of orders so you don't i guess deny the possibility that along the way let's say there might be an order in the bankruptcy proceeding outside the adversary proceeding that i don't know my catalogue of bankruptcy orders but you know that that isn't final but that nonetheless they say is tainted if there is a tainted non final outside the adversary proceeding or would that be appealable at the end no you win when would you appeal that one those under under the standards under the bankruptcy code and this court's rulings and i did research some additional case law which i would like to cite today and i've provided the council earlier and we have copies for it but there's one particular case whole this circuit and others reviewing bankruptcy decisions have freely applied the collateral order dr in the for gay conrad rule to such results in that case and in a few of the other cases i polled for instance  the the court the th circuit has ruled and held that state relief orders for instance are final and appealable orders so for instance with regards to mr broker and the appellant's complaints as to what happened in the adversary the adversary was validity the extent prior you mean we we were not involved the trustee was not involved in this it was between mr brokers client and a secured credit or district court and then there was a stay relief order which allowed that particular scourged creditor to go back to the state court and litigate more issues with regards to the validity and that went up to the rd the c s a and mr brokers client lost that so they've gone up three times on appeal these are not our issues because the interesting thing too about finale is mr broker's client  plan what it confirms plan does under chapter eleven is it revenge it's all property of the chapter eleven bankruptcy estate in the reorganized letter which was mr brokers client mr brokers client used available funds from the chapter eleven case to continue post confirmation with litigation efforts against face who is identified strict as anonymous client and others they used up those monies they had a great a very favorable plan that melinda russin the taint for them and it would have enabled them to continue making mortgage payments and doing a whole host of things while they continued to either market liquidate or sell the property problem they have and this is also a fine order when this case was converted post confirmation to a chapter seven this is clear there's no dispute anywhere about this there was no had found that there was no property of the state so the reason i bring that up is because judge gale below said there is no peculiar you interest that the debtor has in this particular state without going through all the layers of claimants who would have to get paid for the resentment area interest no one had a peculiarity interest in the chapter seven which is the current proceeding because the chapter seven estate never had any property nor could prop so we've been litigating some of these issues for sixty seven years now and you know i know what was in light of what you just explain what was the adverse or adverse like judgment against mr brokers clients after the conversion to chapter seven the court had written it was the apple or refusal yes judge you were referring to and if i  ruling affirming the case and then about eight months after this court affirms that judgment the adversary proceeding that's when on faces motion  converted the case to a chapter seven and appointed mr capello as a trustee yes i believe that's accurate and so from that point on what happens that is adverse from your perspective to mr brokaw's clients the judgments already been issued yes job easily as a rule sixty b motion filed at some point and that gets denied us or any other litigation besides that when that rule sixty b motion gets denied no they took that up to district court and as mr berger said there was a stipulated dismissal with prejudice and that was the rule sixty b appeal my understanding from mr berger's papers is he's we discovered another ground that they believed was a basis for recusal and as pointed out by judge gale they argued in the district court that they never brought that motion because they thought they were going to lose would they still bring the motion i mean is there anything preventing them from bringing the rule six to be now and and judge gale said that we said that we said that's the right procedure if you think you've got sufficient grounds to bring another rule sixty three dollars motion you need to bring it before the bankruptcy court that they just skip that and i don't think there's a court in the country who's held that a final the trees necessary to make all the other orders in a case final in fact this court's held stay relief orders are final it's held confirmation orders are final adversary judgments are final and part of the reason i brought up the effect of confirmation with respect to property of the estate is there's no way to put humpty dumpty back together again here but there is no property over which the chapter seven trustee has jurisdiction none it's all been litigated it's there's been stay relief granted it was litigated against and again in state court and there's just nothing that can be done in this estate and the odd part of this particular appeal is most of what mr broker in the appellants have complained of  i'm sorry if this is like remedial appellate bankruptcy practice it probably is but just so i understand trying to think about like the quintessential non final order maybe let's say like an order denying a compelling discovery right yes so if there is an order denying a compelling discovery outside the end recently proceeding that they say is tainted by bias the reason john the reason that the bankruptcy judge denied us discovery is because she brought up it can be a contested matter when that say say someone had objected to the claim of face and it was an objection to claim that an adversary proceeding when the order was entered allowing or disallowing the claim that would be relevant and that would be appeal that discovery i see so so i see so you wouldn't wait until the tail tail and you wait until the end of the contested claim piece of the proceeding that's correct you got it ok very hopeful that has to be final yes yeah absolutely went to like the next final order that pertains to the interlocutory over that you're concerned about yes which is exactly why i brought up their stay relief order because those are in the main case and they basically divest the bankruptcy court of jurisdiction so there's my my understanding is judges the coffs recusal was not because a recusal motion was uploaded she recused herself because mr scruby area who's one of the appellant's here in and delivered that particular letter and left it in the mailbox at her residence that was why she recused herself not because of the mirth of anything in the letter or anything else she felt that she could not be impartial after he found out where she lived  left the letter at her home here on earth your honour's if there's no other questions i finished the staples thank you thank you very much yes judge wright thank you let me let me start where we left off as demonstrated in our later motions in the district court it was clear and a matter of public record where this judge lived because that was the registered address of the foundation where she had all of the galahs every year where donors including the senior partner of the firm that represented face were there and so we feel that that was a pretext to say well here's a way to make the date for my recusal as a recent date and not go back to the undisclosed facts of the beginning for purposes of our jurisdictional discussion i accept all that i but you litigated that or you had the opportunity to litigate that before judge mark you think he improperly curtailed the proceeding didn't give you discovery shut it down told you to sit down but you appealed that to the district court and then at some point there after there's a dismissal because there's a settlement why isn't that if you're at the inception of the case the relationships with counsel that was i'm sorry to interrupt but that i was part of your rule sixty b motion some of it was some of it was not the foundation issue was not was not learned up until later and white so why isn't the answer that you can file a rule sixty emotion with anything you've learned after that i met that's one of the things i'm hearing now and i i it it except that so so me put that  as perceived by people who are not regular practitioners in the bankruptcy court and they need to get disclosures either at the beginning of the case which is what the situation was here or in the middle of the case when something happens as is what happened in the trafford case so how do we get here we get here because the issues the issues could not be brought before this court until the case was final as as demonstrated by this court's dismissal of the large appeal which was from the sanders order that was one of the cases the council gave me this morning but let me make sure in two thousand and fifteen when you discovered additional evidence that you thought suggested that there was some recusal issues or the need for recuse at that point in time you could have either file  sixty b motion or could you not have asked for reconsideration of the previous denial of your sixty b motion your initial six to be based upon the new evidence would that not have been a procedural to you could have u you've you've gotten to the heart of of our conundrum but it that we got at that point if if your reconsideration motion or your new sixty b had been denied that would have been the ability to get here right that would have been your ticket or your key through the door to get to this court i don't believe so because i believe that under the law that this court has a stablished we can't get to this court until the final dismiss closing the case and so we had a conundrum of do we go back for another sixty b motion in front of the judge that told us just sit down no discovery this is offensive or do we wait for that final order closing the case of that we can get to the th circuit on what we have and so what we've done is we've waited until that final order to get to this court so that we can ask the square to take a look at these issues and and give us some relief hear that perhaps this court looks at it as we should have brought another sixty b motion and certainly that's what judge judge gale said in the district court but we wanted to get past the district court and get before this court with these facts with these issues and do it at a time when we were confident that this court would have jurisdiction based upon the finale of the proceedings below