well here the next case on the calendar ashmore versus c j i gr the order is immediately appealable either as a final order or as a collateral order it put ashmore out of court even though he is the sole plaintiff if we're right on the merits yes you ensure that the trustee has deprives a district court of seven out of jurisdiction and under those circumstances there ought to be immediate appeal but moreover the easiest way to conceptualize this is that this is the flip side of denying intervention to a party who has the absolute right to intervene rule twenty four a either because the party has the right to intervene from a federal statute because he claims an interest in the property or transaction a lawsuit that existing parties do not  five fifty four c and five twenty one a one the abandonment provisions of the bankruptcy code and therefore has the absolute right not to be substituted out of the case and be displaced by and lose control of the case to a trustee with conflicting claim for a value that ashmore considered to be not enough and that is what's going on in this case but that's weird at that point of that settlement occurs then there would be a final judgment  court that it or it may not consider the abandonment issue because it's been resolved by the new york court and the third circuit's issue pollution rules are the same as  this this judgment below which is not been appealed it could approve a settlement that provides a full recovery to the creditors in full fees to the trustees and trust the inner lawyers but doesn't compensate national for the loss of his career and in fact they as soon as the bankruptcy case was reopened they told the trustee that whereas before they were interested in paying eight hundred thousand dollars that's down to five hundred thousand this is  an and they could well approve a settlement under rule forty one a day without court order so this this may never come up again and we may never have a chance rule forty one a dismissal that's a dismissal and then that's final judgment in the case of whatever sort and then anyone who's aggrieved by that judgement can appeal well it is not clear that it's fact that's that is the  that's how it's going to work out and in fact your statement that the trustee would not be interested in maximising the recovery yes because because the the trust the the the creditors there are forty two pounds forty two thousand dollars in claims and the case this resulted in the destruction of ash moore's career and the economist in the case the only economic expert is valued the case north of two or two and a half million all many of the claims that the largest claim was to the department of education that was was disallowed by the bankruptcy court because mr ashmore is not in default so that that's the largest reduction so i think i guess the issue of appeal ability is is of concern of concern to the court i buy wanted to develop kind of the merits to why this index number in the only place in the petition which specifically calls for listing lawsuits and then fully disclose disclose all the particulars of the lawsuit to the trustee in the bankruptcy judge the trustee fully investigates the action to decide whether to administer it for the estate if it could be settled quickly she said she finds that it cannot be settled quickly can find a lawyer to take it determines not to administer the estate and closes the bankruptcy case saying it's fully administered the discharge says that the estate has been fully administered or is that the case jurisdiction and the only reason the only reason that this is not an abandonment is that he didn't also list this claim which really had no value in the schedule b now isn't it i mean there spain called the sofa one of the schedules involved so from a textual point of view the decision below is wrong but it's also wrong in terms of policy but the purpose of the use of this disclosure provision is to make sure that the trustee finds out about the claim in the lawsuit has an adequate opportunity to investigate it investigated and decide whether to administer it for the state or not she did that because of the extensive nature of mr as disclosures he gave gave in the complaint in the case he he gave her and he gave her gave the bankruptcy court in front of her a lawyer and a big speech about what the case was all about and she had there's nothing in this record or the other side has pointed to it was not disclosed that she didn't know about that she should have known in order to make a decision about whether or not to administer this case so from  is included in the in the sofa but not in the schedule of assets and liabilities does that does the debtor in your view have to make an additional showing that the sufficiently scheduled because it was in the sofa or you could decide that as this third circuit didn't cain that it was unscheduled but adequately disclosed and even in in has not been administered by the trustee normally returns to the debtor when the bankruptcy court closes the case undisclosed assets automatically remain property of the state after the case is closed so in  the second circuit including that one after i after i see this circuit is even emphasized the importance of the adequacy of the disclosure and the ability of the trustee to investigate past finances not present assets so that if you include an item in the in in the sofa but not in schedule b that that could suggest done the schedule b was a didn't didn't call for a claim it's generally claims against third parties including lawsuits it's been changed in two thousand and fifteen just to remedy that confusion that was involved here so now the schedule b says list all claims against against third parties whether or not you sued or not but that was not the situation in the schedule being that was filed the form that was used back in two thousand court and then he goes forward and gives the copy of the complaint to the to the trustee explains the status of the of the case at length which we which we cite in our you know our brief both in letters to the trustee and at the hearing before the bankruptcy judge it's fully disclosed that the the trustee has never disputed that she had adequate disclosure and and she dismissed the john informed judgment as she as she you said this circuit has relied on that language after i honestly i'm trying to well there's a there's another unpublished opinion cause i bark which we cited in our brief which also says even if there was in which there was no disclosure anywhere and it said even if oral disclosure is sufficient that there wasn't oral disclosure here you can't even even if this is saying there was no kind of anything so there's not and then direct but you insight on it and he found the policy choice to be a tough call but since then they seventh circuit in spain has said it has called the sofa a schedule the tensely d c circuit marshall last year i think has called it a schedule and all of the circus including the third circuit which is the one that in kane the one that supervises the new jersey back to the court where this where this bankruptcy protection banksy case was was has said that at the same thing it's either it's either either the trustee that considered it scheduled and and exercised her judgment about whether it is worth pursuing for the state or we consider it unscheduled but adequately disclose because it wasn't concealed so the the f a says one final question which has to do with what the trustee did in this case which i find to at the end of the can argue abandonment in certain circumstances and in the kid but i understand they're put that aside for a second i'm trying to figure out which way that agreement cuts because on the one hand the trustee is adamantly saying i didn't  abandon it and you shouldn't even say that i abandoned it on the other hand she's saying you go ahead and pursue the case in your in your own what it which way does that cut and what is that first of all first of all i think judge doris got it partly right on that because she really didn't consider it and said it really ought not to be considered because it's the discharge from the back of the court that that needs to because otherwise you point in time it is not possible for him to determine when the matter will be concluded therefore i'm willing to close the bankruptcy case and not administer the asset at this time this will allow you in your present counsel to continue with the litigation without any delay or jeopardy so she's saying that only if she says jeopardy without jeopardy she's saying you're going to be in you know i'm going to be out until the end of the case because she goes on however i don't claim my money for the creditors however i can only do assured that should the amount you collect from the litigation generates a significant distribution to unsecured creditors you will consent to the reopening of the case and not claim the litigation was abandon michael's in the case at that point at the end of the case if you are prosecuted and you received your collection you will not then if i choose to reopen you will not claim that i abandon the case but in every other respect so she doesn't reveal it in every other respect she abandons it she closes the case and says it's fully administered there are no assets no property to be distributed and she tells judge horace you know  that that i'm out and mr ashmore is in he's the one something that france the is permitted to do well that's an issue for the bankruptcy court but but i don't think it's an issue for either judge torres i think she recognizes that or in this court because you would then be in the reciprocal position of one of the mccain decision where there was a southern district bankruptcy or new york bankruptcy court that issued this charge and circuit in kane said we don't we we we vote we can't review the destructor understand but i'm not excuse me i'm hot this is not about the issue i think you've been talking about all i'm just trying to find out are you relying on that agreement because in least in a vernacular sense maybe not in a technical sense that's the clearest evidence of some abandonment or a bit at least abandonment in the sense that the trustee acknowledges you should be the one to go forward and then we'll divvy up the money at the end yes and if that's something that a trustee can do that my when the case for you and it is that an argument you're making  to say i mean normally abandonment is when the trustee effectively or explicitly says we don't want this it's worthless i mean it's easier for me at least to conceptualize when it's not a  action but an actual thing your stamp collection is a bunch of crap and we don't want it and then it turns out long after the fact that the stamp collection has some valuable stamp in it and it's worth millions of dollars right  that that's what you know normally constitutes abandonment but to say for the trustee to say you know actually this might have some value to it but i want you the bankrupt to go out and try to maximize that value and then we'll divvy it up later that strikes me as at least unconventional well what we're also this circuit is held in charge and i think it's in our brief that abandonment this kind of another words when there's adequate in our brief cup of circuits to say it's an abandonment when there's a discharge and it's not administered there's an abandonment but but you can revoke it you can revoke it under sixty be at the end if you've reserved an interest in the trustees reserve an interest in the in the fruits of the lawsuit you can you can revoke it if it meets the standards of rule sixty big the second circuit is not as not said that so we are so we have said in our brief that that this was probably an irrevocable bannan but it but it does evidence it points out that she knew the trustee knew she was abandoning it because she had she was telling and by the way that effort was on represented at the time when he signed this judge torres hits and it put a deadline of two days later september a thief that if if if she wasn't told who was in the case she was going to dismiss it with pre so mr ashmore was sitting there confronted with this thing knowing if he didn't sign it into days he might lose his case so this this letter in my view whether it's proper thousand sixteen decision dismissing as the transmitter as a former party to this to this lawsuit he brought this lawsuit then he lost control of it in the bankruptcy as a former party i think he has the right to appeal that i mean i don't think that there's any problem with that we're not we're not contending that has a right to appeal a settlement between is it right to appeal the forty one a dismissal that would have to happen to consummate the settlement as to the settlement itself and its fairness we're over across the river in newark in the bankruptcy court and he certainly has the right to object to this settlement in the bankruptcy court he has how that works out if the bankruptcy court approves the saddle mind and the district if the circuit were to reverse judge torres's decision would ashmore then be able to seek relief from or from the bankruptcy settlement in the third circuit and that's why this case has become a quagmire for us as well as for the other side we've been going through this for a long time i think the answer to that is yes but it's a very difficult set of circumstances because there is overlapping jurisdiction we've argued about this bo before judge tours and before judge paleo as the case in the in the in the bankruptcy court i mean in a sense it's a quagmire is that it makes sense now for us to to just review the appeal to avoid these  s your honor i would i would be delighted although we have said as we have to because there we don't think that this is an appealable collateral order that's the law but it would certainly and aid them in the ultimate resolution of this case to hear from the court on that subject and i'd be happy to turn to the merits instead of talking about the jurist lose this is one of those cases where both sides may want us to re we were all reading beneficial finance versus cohen and its various branches just before the july fourth weekend last year when at about four o'clock in the afternoon we got an emergency motion for  think as we've said in our brief and i won't belabor it we don't think this is an appealable an appeal of collateral order i mean that the notion in you know well versus vicious hancock and the fisher case that judge pooler sa i mean this is this is not an appealable platell order let me turn to the merits for just for just a minute just in case you decide to get this for mr herbst is is is is not correct or is not correct  decisions on point and they're cited there the first case is cited on page forty two of our brief their first circuit in the eighth circuit case i mean this is this is been the law and judge garage as was entirely correct in his holding th vast majority of courts i have said exactly this that you have to list an asset on the schedule of assets and liabilities in order that it be returned to you at the end of the case by operation of law and mr herbst in his brief in his arguments throughout this case is said well he was a pro se debtor he didn't know anything i don't ask you to do this now and perhaps your clerks want to do this but if you turn to appendix hundred four it is the last schedule in the schedules in this case and it says it has a column of it says assets and it has a column of it says liabilities he said all of his assets are worth twenty eight hundred dollars and he has three hundred thousand dollars and you don't have to be a genius to figure out that if you have a lawsuit where the aunt damnum is about one point five million dollars you have to list that and then in turn in terms of being honest with your creditors one happens when you don't list it is very clear and it's something the judge lynch alluded to which is if you list no assets or twenty eight hundred dollars the bankruptcy court looks and says this is a no asset case and notifies all the creditors who you've listed that this is a no asset case chase bank american express this one that one the other one and they say ok it's a no asset case right off the debt and let's get out of here and that's what happened he had three hundred thousand dollars worth of debt that's on the creditors knew until two thousand and sixteen when this was reopened and there were a couple of creditors who said oh yeah i remember this we should go forward and file something here but that's what him and then as they have is the problem here aware because he tried to dismiss his bankruptcy case without explanation she came back to him and said why are you doing this and he said oh you know i have this lawsuit here and she said i'm not giving it to you they went before the magistrate bankruptcy judge and newark and mr mr ashmore argued that he wanted control of the case and bankruptcy judge stern said no it's not in the best interest of the state then she turns around i don't know how this happened but she turns around and enters into this letter agreement with him which which you've already spoken about if she wants to abandon an asset there's way to do that there is under five fifty four a and b you she has to give notice to the u s trustee she has to tell the creditors she's abandoning and an asset and she has to if someone wants a hearing she has to have a hearing and explain why if she wants to enter into a settlement in a case under bankruptcy ruled nine zero one nine she has to notify the u s trustee she asked and notify the creditors and she has to if there if they want to hear and she has yes to attend a hearing and explain that you can't do this you can't enter into some kind of letter agreement where you have we agree that you can enter into a letter agreement where you're half in and you're half out and that's the whole point of this what's going on here because this was never disclosed and by the way he's one point five percent interest in a private company that he had at the time from filing a subsequent was a lower lawsuit in the settlement those neither one was disclosed so every creditor found out he has no assets they all went away he got a bankruptcy discharge by the way of three hundred thousand dollars of his debt and nobody found out about it this is a classic case  thank you thank you i think that mr festoons concession that there was complete and full and adequate disclosure should dispose of this case and should treat lead to or versatile because that's the reason for this and the eighty five hundred dollars that was was undisclosed in another case is really not an issue here that's an issue for the bankruptcy court this this the libby the holding below that is that needs to be corrected is was wrong with that's what that's why she wanted she wanted it and i was considering it when she found out and that's in the letter agreement that i just read you when she found out that there was no settlement to be had immediately and she couldn't find a lawyer to take the case she gave it she gave it away and she abandoned it so i'm asking this court to two to exalt substance over form and not administer it that's abandonment that's the part of the disclosure part of five twenty one a one which includes all three parts includes the self that's the part that needs to be fixed and i'm a mess and they will be asking this court to do that then she being the trustee i'm but there is one point i want to make if you look where you're coming close to the end of your time so go have it basically says our personal property and other contingent on what with any claims including tax refunds counterclaims of the debtor and rights that settle which this was property was he was supposed to put down for the for the value and that's what cain says the third circuit cases it says the equitable distribution there was no value it was in call