in other words roughly that sale that you would give the taxes and mr cast in the bid was have no relationship and a third party other than making this business transaction everyone frankly from dealing with mr roughly sixty percent of the not proceeds that was the deal made between the two parties but we are here on cross motions for summary judgment with the district court granting bail or denying story that's correct your honor and what was the basis for the grant of summary judgment to it's not quite clear in the judgment although my reading of the judgment is that the judge in the district court stated that court holds a hearing within ninety days time that never occurred because the case prior to the ninety day period was remanded to federal court removed remove the season and so that hearing never took place and that ninety day statutory deadline is not a deadline for filing the claim it's a instruction to the court by the legislature to hold the hearing by that time when the case of the state in spirit court  the statute to ninety four j the clerk of the spirit court must give notice to all claimants but of course never of the hearing but of course never happened because the hearing was never sat so additional notices were given but of course it is who are on title and have a possible claim it i should also note for this court that elizabeth well never received any notice from anyone the only noticed alan bit well received was from the trustee stating that the funds were going to be deposited into the court so so far so good to me the most logical reading of the statute is affectively notice to the claims from not filed with the trustee i make that conclusion based on the fact of two nine to four j d which states that all claims that are filed and there's no restriction on how they are filed must be heard by the spirit corps if they are filed within fifteen days part of the hearing on the superior court level of course no hearing took place and i think what should have happened when the case was removed to federal court is federal interpretor statute procedure should have taken over mr cho makes an argument that tonight you for jason struction to the trustee to give notice that all things must be filed within thirty days is some sort of statute of limitations i don't think that argument it's very strong i've never heard of a statute of limitations that applies sometimes but doesn't apply other times by its own terms to nine to four j t none of its provisions apply when an inner pleader is followed it's a voluntary summary procedure that can be utilized but doesn't need to be utilized what was the basis for removal to federal court the us government the i r s had a claim several notches down and they were moved to they still have a dog in this fight basically no they didn't  state court i never result and the parties never got proper notice to predict whether they got prior notice whether there should have been a hearing date whether the thirty day says in effect a statute of limitations whether the instructions to remain back to state court since the u s says that it's so far down the line that it doesn't have in effect a dog in this fight any other that's not so the appropriate i mean what i find troubling is that parties to a property to lean never got notice unless you never got a nose that applied to live with that well to be clear alan bidwell got notice from the trustee but never got a notice from the clerk and then you had deadlines and s i never asked and for the reason because up to the district i believe the removal was proper i believe when the us attorney asked for removal is that a proper removal to federal court but as you say you could remind it now well at the time now now i believe it's proper but up until the hearing time the us was still claiming an interest so there's no opportunity for me to make that request yes the sort of the flip side of the question i asked earlier and that is what would be wrong with the us district judge looking at the issues that we checked off before noticed etc and construing california law and judge would be wrong or right but what's wrong with a u s district judge saying in part i have to decide california law here it's something we do all the time and diversity cases and i look at all of the stuff and i conclude it's not a timely claim but i'm judgment now going to the substance because i think you want to ask me more of a procedural question has once the case was a move federal procedure should have been applied for two reasons number one that's your review tomkinson number two under two ni this statute specifically doesn't apply if there's a need or a plate or i mean that's in the statute itself there's no question the case was treated as an interplay here because there was no ninety day filed in fact i asked the court this very question and it's my first question and i said your honor is this court treating it as an interplay or sort of a nod of the head and i said well then your honor tonight you for j it under tonight you for j e two nine two four j does not apply and he said well well now what do you know if i don't consider it to be in a plater so i sort of stuck for lack of a better term because in my have been treated as an inner plater i thought that was fine if you come to the same answer under an interpreter because there is no default and under twenty eight u s c six hundred fifty five in order to remove a lien there must be personal service if they can be found if they cannot be found which is the case in the present the must be publication service the publication there was neither no default was taken you can file late if no default was taken so under either set of rules i think my client as a lawyer he simply made a business deal and again it's funny because the district court has the same sort of reaction i believe you're having which is that there's something untoward about so encroaching such a purchase in someone else's lien  this case involves a question of whether the district court abused its discretion and refusing caps to assert the claim of the bid wells more than fourteen months after bed wells were given a notice saying you have to file a claim within thirty the effective december fifteenth on january fifteenth of two things of the following year katz comes in with a motion for summary judgment at that point in time it was incumbent upon cas t declaration all right sorry this is mr bidwell this is bad well they're not come forward with a declaration cast did not come forward with a declaration counsel the not come forward with a declaration they had full and fair opportunity to explain to the court below why they did nothing for fourteen months and they failed to do so and that's the crux of this case they have opportunity to love to do that and they did not they can say anything they want to here in this court but they does not present any evidence to the court to love as to why they waited fourteen months after being told that they had to file a claim within thirty days where this come from and she didn't get appropriate notice was that back in the state re i believe if you look at the proof of service it says it's different for different documents for the initial notice it says allen bidwell and it has an address  both of them the notice of removal to the federal district court was given to that same address the bidwell it was given to the bed was attorney who obviously knows how to file a pleading in federal district court because that  supplemental excerpts of record have not there's a cleaning that was filed walking after what after the big wells had assigned their claim to katz what's being argued about here today as i understand is the proceeds from a foreclosure sale correct o a piece of real property right at the time of the foreclosure sale who was the title owner of the property frank eckerd and how had he acquired the property by the notice given by the stakeholder the inner police are satisfied with playing within thirty days they didn't do it i take it your motion for summary judgment going forward responded all these facts including that no claim has been filed for this period of time that is correct our motion for summary judgment was against cas against the iraq and there was a federal question there you asked why shouldn't we remain and there was a federal what happened was up until some point in time we haven't really computer that was somewhere around around the time of the hearing the ira still had a dog in the fight to the tune of five hundred to a thousand dollars and so just to focus on this point pleading in federal court and there's actually nothing in there and that's leading to the extent it could be considered it really explains why that was didn't do anything for fourteen months but what's the best crisis that you have that shows that the district court properly granted not base its opinion on california law in fact it's the civically rejected our argument that this was a statute that the state law was a statute of limitations and said we're applying the federal rules and i look at this and i see that the big wells were given notice they did nothing for fourteen months furthermore they did not give me any explanation we all understand that when you do something late sometimes you're allowed to come in late and do something that you should have done time but you have to give a reason there was no reason not like being sick or something or anything there was just nothing and obviously caps is represented by able counsel and they know how to put something in the record and they didn't do it considering this i'm considering this to consider everything they needed to consider and they said on balance when we balance the factors really for taylor's office and so this is an abuse of discretion and there's nothing  record when it when somebody is late and they don't present any evidence whatsoever to explain why they're late and it's fourteen months and the court also noted that effort that there was a scheduling order says that you never put the for the district court any factual information which would establish even the claim that the biz wells did not receive notice you want to facts did you put before the district court to show that the bid wells didn't receive proper notice i put before the district court a little bit will never see a notice but also clarifies that in an argument that you file her that did you did you put any of this in the form of a declaration before the court but my question i guessing the reason why i'm struggling so i get a straight factual in the strict actual answer is the bidwell s clearly filed a claim whole bunch of things which would be very interesting and worthy of some real focus if there were a declaration in the record before the district court that set these things i didn't receive notice i didn't do this of prove a service which doesn't list her and there's no argument the other side that it does list or that she did receive it now that being said as the wife of the husband pushy aware of it my guess is probably but i don't know the they had the same attorney did they did and i don't believe they were divorced but for the record i don't and in most jurisdictions if if services last proper really had a proper address upon a person suitable age and discretion and there's another person living and whether they're married sister or brother or whatever it raises some legal presumptions all of which you could have been attacked by a factual declaration but it's not present right but i have no argument as to the found their client you know they must be the fault they must be served personally that's under twenty eight u s c sixteen fifty five they were not surprisingly there's no dispute as to that if they cannot be found they must be served by publication there's been no publication there's no dispute about that and if they fail to do so after being properly served they can be defaulted to mr taylor at any time could have defaulted up and mr taylor at any time could have bought the bit also claim there's no magic to it so the just on that point thank you both for your arguments very interesting case it'll be said that if the decision will proceed to the next case on the calendar which is most ski vs cable