one of which is good enough the first way of course is if the asset in question never entered the bankruptcy because it was not listen the bankruptcy schedules and because it didn't exist at the time the bankruptcy was filed in the scuffles word were filed in that instance of course the claim belongs to plaintiff in standing is not a problem the other way in which we should win this appeal would be if at the back of the bankruptcy whatever was put in the bankruptcy in terms of this claim when the c p a contract in fact was abandoned as was the intent of the judge as was the intent of the parties the creditors the debtors and the trustee if in fact those same assets actually of the bankruptcy then of course under that scenario as well the standing is not a problem and we should prevail in the end as i'm sure you see this is really a dispute among three judges and two of those judges favor our posture that being the bankruptcy judge in florida judge hyman who not only originally abandoned all the assets but then later clarified that he had done two years prior was in fact to abandon the entirety of the claim and of course the other judges the florida state court judge cynthia cox judge cox who also granted granted the assignment to miss luau on all of the claims against any defense and of course the judge was goes your directions judge selma and that's why we're here i do think this presents this case presents a novel question of law i don't think i think it's a question of first impression we were not able to find another case where you had the intersection of the of the o'dowd line of cases at the front and a bankruptcy with the batley line of cases at the rear end of the bankruptcy that is the intersection here that we have two years later three years later actually is magically severed under the under the badly in language which explains that work claims are inextricably intertwined nevertheless some can stay in bankruptcy and some can exit at the end of the bankruptcy a novel wish that needs to be addressed and i don't see how those lines of cases were ever meant to be compatible together they cannot intersect because the old outline of cases requires that the asset sever so that it goes in the gather and then when you get the baxley value it's the opposite we're talking about what well quite frankly at the end of the at the end of the bankruptcy if they're impossible to sever then how can it be severed the only way you use batley at the end of the bankruptcy is to sever them despite the fact that they might be inextricably intertwined according to that language so i think that's an important thing to address in this appeal i see i have i wan  none proton's going back that the nonetheless he can't that bankruptcy court can't affect the jurisdiction that the district court had at the time that the district court ruled because at the time the district court ruled the bankruptcy order that was later changed was in effect well because done proton means now for then the it is basically means now for then does that what the judge is saying is here's what we did two years ago it was not i just told was telling all of us including the judge in california what i did two years ago was to abandon everything on the c p a contract out of the bankruptcy so that it could be pursued by the creditor the ninety three percent creditor instruct to give notice to everyone who was entitle to receive notice and he did that to the trustee to the court to the entirety of the creditor matrix which we were informed i'm not a bankruptcy but we were informed by that lawyer that that's that was the entirety of notice that was re d to reopen the bankruptcy case and the clarify that prior vandeman order well everyone bankruptcy is one thing but there's since you're doing it in order to have impact on the district court case here then be a question about giving notice that people are here to i'm not aware of any requirement for the defendants in this case to receive a notice of a bankruptcy reopening and clarification order in florida when they were not part of their bankruptcy they were not creditors they were not  appreciate a comment just personal but i'm not aware of any requirement for such notification to do what we did that bankruptcy court or what bankruptcy council did and that was given the fact it was going to have impact all here and that's why you're doing it there would be it would seem a requirement for just not aware of any such requirement for such notice not only from our perspective as counsel in california but in consulting with bankruptcy counsel in florida we have never been able to locate such authority or such a requirement and in fact i don't believe i've seen it cited by only aware of the breach of contract that occurred in two thousand and nine by the solitary defendant being c p a because they'd break the contract and that they were not paying him his monthly monthly sway just under that compensation agreement so were running the company until it was dissolved who were involved in his not getting paid different contract there's two contract stock purchase agreement and compensation agreement you're referencing the bay they own part of it i believe they own part of it yes but still they weren't part of the contract the contract was was with c p a and mr ross for compensation for his ongoing role as a consultant that was the contract that he he claimed was breached now what are claims that in serving the finances is separate from that it's it's that they took the money from c p a and distributed to themselves so as not to be able to pay that c p a debt to mr ro a fraudulent conveyance and a distribution of directors and shareholders in violation of california law that didn't happen that had not happened at the time of the bankruptcy filing when that when the assets were scheduled for bankruptcy that had not happened so the causes of action had not i've got seven minutes of the fifteen minutes represent and then this has the remaining five minutes the you represent my name is robert parents i represent stephanie scherer contractors managing  agency i want to address three issues one that the causes of action against the non c p a defendants came within the property of the state pursuant to five forty one of the bankruptcy code to that those causes of action against and on to be a defendant's did not get abandoned pursuant to five fifty four of the bankruptcy code and that three if mrs leroux did not have title so the cause of action against and on c defendants when she filed their complaint she did not have standing and therefore there is no case or controversy and that was the basis for the district court dismissing the action the nunc proton corder that was issued in two thousand fifteen by the bankruptcy court cannot retroactively cure that lack of standing so starting with the first issue property of the state under five forty one of the code very broad section we've  the supreme court cases like circuit cases and it has two components five forty one a one which includes all legal equitable interest of the debtor in property as of the commencement of the case and  three sees me a seven any interest in property that the state acquires after the commits from the case the o'dowd case references five forty one a seven the other important code section here is one  one five which defines clean and claim is defined very broadly it's a right to payment but includes even on the liquidated contingent on mature and disputed rights to pay contingent on matured they're included in those claims are the basis for causes of action the ninth circuit follows the supreme court case of siegel vs for sale which is a pre bankruptcy code case from  reierson says the ninth circuit case by including all the go interest without exception congress indicated its intention to include all legally recognizable interest although they may be contingent and not subject to the question until some future time and in rewriters incited siegel versus richelle and it says the code follows siegel in so far as it includes after choir property sufficiently rooted in the prevent group c pass and then it says by the limits the requirement that it not be entangled with the debtors ability to start a fresh start so in the ninth circuit the s sufficiently rooted in the pre bankruptcy past this dad's this dives is going to be talking specifically about the pre petition activities the things that happened prior to august twenty fourth of two go into this in more detail but the breach of the compensation agreement pursuant to the third amended complaint happened in april of two thousand and nine which is pretty petitions so again so go through chronologically all the things that happened pre partition to show that these causes of action the bases for these cause of action and some of the causes of action have fully a prude pre partition so it's based on those two co sections five forty one a and one hundred one five that the cause of action against the non c p a defendants were included in the bankruptcy state so then the next question were those causes of action abandoned by fifty four the code as well as bankruptcy rule six thousand seven both require notice and a hearing but code the bankruptcy rules are all established based on due process they were put in there based on with elaine supreme court case where before parties rights are affected they're entitled to notice an opportunity for a hearing that's what the district court a insurance company what's not there is any claims or cause of action against the nonsmoking defendants so what the district court held was based on what happened in two thousand and thirteen there was no filed the bankruptcy that the claims against the other individuals had not yet arisen that is really going to explain more by miss dogs so i'm really going to leave your question but i'm trying to get through the legal issues she's really going to get into those facts ok that there is quite a bit of activity that happened before august twenty fourth two thousand and ten the third issue is did not have title when she filed the cause of action there was no case or controversy there was no standing and therefore the case had to be dismissed the florida state court order was january second of two thousand and fourteen immediately after the abandonment and if you look at that the thing that was stated in the florida court order that assigns the cause of action to the r it saves includes any right of action or chosen action which ross may have against c p a insurance company or others or writing at a breaches of the green and referring to the compensation agreement in the stock purchase agree that's all they had to do was they had to put in the abandonment back in two thousand and thirteen the same language but that wasn't done so can you cure the lack of standing retroactively and we've cited the there was a dispute or that a dispute was created somehow between the judges and the judge in the district court when he granted the motion to dismiss and that simply isn't true real briefly in abandonment motion simply abandons the claim or the property to whoever owned it before the and the enjoyment motion the abandonment motion makes no determination about where the property goes or who gets it or what they're going to do with it he simply abandon the motion when the assignment was made the florida court simply assigned the claims that ross then own and now when the district court reviewed those documents he didn't change them or challenge them he reviewed the actual language of the abandonment motions and the actual language of the assignment when he made his decision about motion to dismiss and standing so there was no attempt by the district court to overturn anyone back east or to change any of their rulings he interpreted those rulings as they existed i'd also like to talk about the issue that the court has raised and that is the inclusion of the causes of action now the bankruptcy was file in september of two thousand and ten and at that time the debtor included the c p a claim in their schedule in his schedules and the court is right the debtor has a continuing obligation to update the count the bankruptcy court with any property that it feels becomes part of the bankruptcy estate now as my as the defendant's counsel indicated property that comes into the state comes in under five forty one and it's very broad and it includes actions that they were unaware that the time that they filed that had not been filed prior to the bankruptcy and not schedule it is only includes all potential causes of action that sever so in this particular case we have a group of contracts that were entered into in march of two thousand and eight the stock purchase agreement closed in october of two thousand and eight plaintiff claims that a c p a that to c m g i a actually breached that stock purchase agreement in october of two thousand and eight in november of two thousand and eight c p a began paying ross under the compensation agreement plaintiff alleges that there was a breach the complaint but i believe that the letter is attached to you know i don't know where the determination letter is as a reference numerous times in the complaint i know you and yes well ok is there any evidence that ross defaulted on that agreement well the default is i agree the default is a is a matter of  contention and obviously if this case were to go to trial that would be something that would be discussed at the time of trial obviously libro feels that in some fashion the the conversation agreement was not rue claims that there was a breach of contract cause of action having to do with the compensation agreement and that was based on c p s determination of the compensation agreement and by the way we do not dispute that we sent  letter so we have a determination that occurred almost a year and a half prior to the filing of the complaint there was also a mediation my gosh there was also a mediation there's actually no dispute that the breach of contract cause of action when into the bankruptcy estate every other cause of action well let me put it this way each and every subsequent cause of action in the third amended complaint incorporates the breach of contract cause of action and is based on it even activities that occurred afterwards are still based on the compensation agreement and the breach of it in essence if you were to take that compensation agreement away for example if there was a determination that the compensation agreement was not breached all of the other causes of action go away because the breach or the alleged breach of that forms the basis of all those causes of action because it is impossibly impossible to sever any of those other causes of action from the breach of the compensation agreement all of them went into the bankruptcy estate ross had a claim against c p a that is the claim that is a subject of this case is whether we're ross has a claim against c p a for breach of the compensation agreement now all of the other causes of action are just conceptually impossible to sever from that breach of contract cause of action and if i can in one second for example the fraudulent conveyance cause of action seventy three of the complaint states that plain to visit was entitle to payment from defendants pursuant to the compensation agreement paragraph seventy six talks about the debt that is the subject of that cause of action plaintiff's efforts to obtain payment for breach of complication so all of these causes of action are based on the compensation agreement and become part and parcel of the bankruptcy estate that's required it's required under the bankruptcy code that notice be given so they were never removed from the bankruptcy estate when plaintiff tried to go back in two thousand and fifteen he tried to obtain a none protons order it was improper because it attempted to change or amend a prior order to add additional claims which adversely affected the substantive rights of people so it was an and it was not it was an invalid excuse me an inappropriate also that motion was filed more than the one year statutory time limit in rule sixty b one actually sixty b c for the one motions and as a result the order itself was invalid because it was after the jurisdictional time limit and as the court stated in its case i mean in its order that the bankruptcy court in florida doesn't have the authority or the right to issue cause of action against c p a on breach of contract between ross and c p a accrued in two thousand and nine when the letter was sent that was a breach of the contract which was manufactured by defendants in order to get the money out of the company and not have to pay ross as against all the remaining defendants there was no a cruel the cause of action until two thousand and eleven at the earliest because that's when the distribution happened the distribution of the millions of dollars from c p a to the shareholders happened two years later after the filing of the bankruptcy in two thousand and eleven that's the earliest possible cruel but it's probably later than that because there was a fraudulent conveyance going on here by the nature of fraud it was hidden from the plaintiff at the time ross but really now by assignment so based on delay discovery you're probably even going to go later than two thousand and eleven secondly in terms of the apparent duty for ross to have updated the schedules of sounds like that there is an agreement upon that i'm go i'm going to assume that ross wasn't yet aware that there was a claim against the other defendants beyond c p a because again the nature of fraudulent conveyance is the fraudulent effort to conceal the misconduct third  does mention that the claims that went into bankruptcy were impossible to sever and that's why they got into bankruptcy that's a very important point with which we can agree in terms of looking at the back into bankruptcy if you were going to accept this position that the claims were impossible to sever then here is the obvious question how did they magically become severed at the end of the bankruptcy it doesn't make sense if she's right that they're  how is it at the end of the bankruptcy they get severed oh so that's and then finally finally it's in terms of the it's in terms of the the allegation of rector active application here from the clarification order again the care for the clarification order did nothing retroactively just explain what had in fact happened two years prior and when you look at this the dichotomy comes down to this the case law case law is also clear that if you're rewriting history already and it's not valid that's the real dichotomy that we're arguing about here and i would submit that with that bankruptcy judge did you see did not rewrite history he simply went back and made sure the order spoke the he did two years prior but i think he deserves better if we assume he knows what was in his head and if we assume he's not lying to us this is the bankruptcy judge in florida then the questions answering he was not me writing history he was