being to violate due process rights of the homeowner in this instance it cannot be time lie here is very relevant the timeline is the foreclosure was filed by the bank and april on this charge what ends up happening is when you identify the property which they did they don't find the property in the in the personal assets and the personal real property that they own after there's a discharge under the bankruptcy code it is the trustee abandons the property back to the debtor anything that is not in minister goes right back to the debtor but this is not an issue of abandonment because again  identify the property so it's not a failure to disclose the issue here is what if that does the surrender happens the understatement of intention and the surrender in this case all it does is identif adhere to the i am i fell state laws and foreclose properly it doesn't act a surrender here on the scene of intentions does not allow a bank to essentially i mean shrink points utilize self help go and take the property going say give me title to the property they still have to adhere to state laws one of the state laws is due process service a process by which they have to properly serve a summons and complaint upon the defendants anything else would be but they listed them as a secure debtor in the bankruptcy court asking for discharge of their debt correct and that was great big discharge was granted correct but the discharge does there one can waive personal jurisdiction is either through filing an appearance in a case or through proper service of process and in resealable also says it's a ten circuit case bankruptcy case that is also cited in the court said because you surrender we can now disregards the due process clause if there are any other questions and that's all i have i believe it's a very narrow issue you you will have a chance for reply thank you chapter seven where they didn't do anything the trustee didn't take any action on the property how did refuse that children response so it surrendered his law makes clear that surrender at the very least is a representation to the bankruptcy court that the collateral has no equity and the debtor will not contest a foreclosure so that is one position that he has taken for the petitioners to take in they're now taking a country of decision here nearly contesting the foreclosure  and i would also submit that that being the case if they cannot contest the foreclosure even if the foreclosure were unwound the petition was granted granted a petition would be a futile act because they cannot contest the foreclosure so they basically  and their part now barred from taking that position in so even if we were to vacate the orders in the foreclosure and restore the party to the status quo they cannot contest the foreclosure so we would we would be accomplishing a futile act now if this were chapter eleven we might have a different story correct it would it would depend on the facts some of the key says that have been cited in the briefs involved chapter thirteen of chapter eleven bankruptcy is perhaps the distinguishing factor would be in many says especially cited by the petitioner those involved the failure to disclose a claim and then later bringing that claim this impulse something i think more intentional it is a stated sworn an intention to surrender property and then a pleading laid claim to that property into that and i think it should be noted that the petition was a hybrid plea so we didn't just ask her question service and a return of the property for use in occupancy damages and many other damages caption under restitution and that being the case judicial stuff will clearly comes into play here given the big hitters prior sworn statements even but even if they are not a stock from seeking all this relief related to the property the petitioners have not cited a single case that stands for the proposition that would allow them to seek restitution damages from strangers the underlying case the petitioners have transfer of the property that may or may not be the case but nonetheless against writer is at the very least the representation to the bankruptcy court that they will not contest that that the creditors at efforts to recoup  lateral i think another sealion point that's that's been glossed over here is that the petitioners have been handed this property prior to the commencement of the foreclosure physically abandoned and so that being the case it's unclear and it's not articulated how they could seek any damages based on the dispossession of the property i would also note that the petitioners mortgage contract allow the the lender to enter into the property in the event of an abandonment so the notion that there was any self help here i don't think is well founded based on this record entering the property does that the bank to have to follow all seizures no i don't i'm talking about with respect to the damages in a claim for loss of possession process and verdict of a court here the record proper does not disclose the location of service or the population of the county in which service was affected in their reply brief the petitioners lassies and frankly sick a sick cries out for the application the doctor again the fishers yes they abandon the property end chose to stand by while two subsequent sales occur so clearly there was an undue del in the undisputed facts clearly demonstrate that both sets of subsequent purchasers would be severely prejudiced if the petitioners are a lot proceed with their claim the petitioners don't dispute these elements of latches ha contend that latches cannot apply as a matter of law i would supreme court's decision in genes versus friends in its progeny makes clear that although an attack and avoid order may be brought it at a time latches isn't available to fans in such a proceeding here because and only because the petitioners did not bring this petition until six years after stating their intention to voluntarily surrender the property in court papers filed in the bankruptcy the nd purchasers from the original regions or the foreclosing or e g now perhaps the petitioners could have waited another decade or so to cast a little wider net  get more successive homeowners to suck money out of their pockets but the legislature has set a maximum time limit in these types of cases with the new laws that were cited in the motions to dismiss this appeal and we've asked the court to reconsider these motions on the briefs that were filed but which is still lies and you can't wait forever to the prejudice of rd parties generally have a speed in terms of bankruptcy law but what they still have to go through the process right that's correct you can't go immediately to the victualling process or something like that you have to go through judicial notice of things like how do you rely populations or where particular address law is in relation to two different counties so even otherwise there was there's not necessarily anything that would preclude the bay being able to foreclose on the property even with safety issues but say leave the running over my case accurately shows that the matters that were of the record that the subsequent received a benefit of a discharge of one hundred and fifty thousand dollars mortgage the property was that they had dated now they are trying to not only reverse the past several years and get back into the property but also seek damages for that is and isn't an equitable thank you very much reply bankruptcy they don't redeem they don't reaffirm they surrender and so in exchange for the surrender they are getting a discharge of all their debts so then how is it equitable that they then  to indicate to the lender here the home lender the the the mortgage or the more g to lift the stay and proceed through the i m f up the owner of the foreclosure law they still have to serve process it's not as if they can just not have to file a complaint not have to get a judgment not have to go to sale not have to get an order approving sale they can just go in and operate on self help and say well we have this surrender  a void or we don't get past the issue of personal injury stiction right what we're trying to do and what counsel ever have tried to articulate is to transition the school of avoid order and make it a void a bowl order trying to get into the rights of the property what title what possession hands we don't get to that stuff we only get to the step of was their personal jurisdiction or not personal jurisdiction or subject matter jurisdiction results lack of their results in a void order we don't get position because of the timing of the bankruptcy and the timing of the service bankruptcy law set under five hundred and forty one dollars fifty five cents what it says is the what becomes the asset of the trustee is at the time of the not so my position is they've done it the other side of that coin is you cannot just disregard state laws right but what who would be bringing that action if you can't  that's the thing service wasn't tried on the trustee it the trustee doesn't have standing it is only my client right it's an unassailable right right and your client is the one who agreed not to contest it so how do we how do we balance before and then the bankruptcy filing was filed and then there's a discharge that that claim would have had to have been disclosed in the asset report that claim what if that become the property the trustee that claim if what would have happened if the trustee didn't pursue this claim it would have been abandoned back to the debtor to pursue at will so it's no different they're trying to take a document that says surrender or reaffirm or rework and try to get it meaning that doesn't exist in bankruptcy law it simply does not this render does not mean that you give up your due process rights and that's