relate to broad arbitration clauses in agreements between mr kirkland and the bright conscience trust on the one hand and debtor e p d investment company on the other hand counsel that's the issue that causes me some transfer claims issue are brought under sections five forty four five forty eight and five fifty the bankruptcy code and in in under under those claims the trustee is representing both the interests statutory claim in this context i think that's right but the point but it's not a contract clam i think that's really not particularly relevant here your honor because the important thing is that it at the very least relates to because i had a right to do it because i have a contract that allowed me to do it but i don't see how that's an armature of clan wealth and i think backing up a little bit we maintain that it is over for gold because the the language of the is very broad this court has said in several cases that the the the language arising out of or relating to doesn't have to arise out of your honor posited that it's not a breach of contract claim well perhaps that might be the arising out of ground but the relating to it can be a statutory claim is still relate to a contract but stepping back and i think this is the really important point on that issue is that you're going to mention is this an arbitrary plane well that's really the issue here and these are these arbitration clauses clearly and we said there that that arbitration wasn't appropriate because the key parties haven't agreed to the arbitration clause namely the trustee and the other creditors well that that case  in the labor relations concept give it why isn't that principle applicable here well i think the reason is because if you look at that case carefully it actually has a lot of language that is very hostile to arbitration that posits that there's there are automatically conflicts between yes the bankruptcy context and arbitration and that language really has i think about superseded by later supreme court cases in the has a principle that the trustee in bankruptcy in the general creditors didn't agree to the arbitration has that been undermined in anywhere well i think the important thing it to remember was a yes or no question has that part of johnson been overall or undermined well i don't think that proposition is is an issue here or been undermined but all that's the main seems to me the main point why i think the johnson case it's right as far as it goes but it doesn't go far enough and if you could let me explain i would the section five fifty of the bankruptcy code which is the provision that allows fraudulent lee transferred claims to be brought back into the estate it's the it's the section that makes all of this having any point right i avoiding a transfer out of the estate is all well and good if you can't bring the assets back and what's the point section five fifty says that it empowers the trustee to bring progs only transferred assets back into the estate for the benefit of the estate and i think those that phrase is very important because it shows that the trustee doesn't just stand in the shoes of the creditors it also stands in the shoes of the debtor a state itself as the trustee does for all bankruptcy claims so you would disagree with  second circuit's holding that a fraudulent transfer claim in this context belongs to the creditor i don't i disagree to the extent it's saying that it belongs only to the creditors i think it does belong to the creditors that's true but it also belongs to the debtor state so it's right as far as it goes but it doesn't go far enough to recognize that in fact it also belongs to the trustee represents the debtor state as well and thus in that capacity is bound by preposition arbitration contracts that the debtor entered into disagree with a second circuits analysis then because that part of their point was that if the creditors process that you stand in the shoes of the creditors and they brought the coin name arbitration would be completely irrelevant because they were never parties to use for that is it just but section five fifty or is there some case law that you're relying on for that smithy arthur anderson from this court says that in general the trustee always stands in the shoes of the debtor state in bringing  honor posited in the beginning this is an arbiter billeted issue do the arbitration clauses here apply to the trustees claims that is an issue that while ordinarily is for a court to decide here the arbitration clauses issue bully delegate that issue to an arbitrator and there's a long line of supreme court cases and cases from this court that say that when that is the case when there is a clear and unmistakable language in arbitration clauses delegating applies at all thorpe deals with is the issue after that which was a can a arbitration clause that does apply to the claims that issue should it be enforced or as a matter of public policy bankruptcy purposes should it not be enforced conflict issue there is no conflict here because with respect to those fraudulent transfer claims mr kirkland and mrs kirkman in her individual capacity have a seventh amendment and in article three write to a jury trial in a federal district court of those claims i was going to ask you father answered and there he demands a jury trial what is the significance of that i don't think there's any significance to that before he filed a motion in a collaborative ration mr kirkland moved in the district court to withdraw the reference to the bankruptcy court on these very grounds that in fact he had an article three and seventh amendment right to a jury trial in the district court the district court denied that motion that's a not appealable order so he couldn't do anything about that at that point and then he repeated those arguments in the motion of really significant here and it really makes the difference and shows that there is no conflict from arbitrating those claims because if they're not arbitrated they will have to go forward in a different form anyway the bankruptcy why wouldn't we say the bankruptcy judge look you played the cards you were dealt at the time  stuff was before you but now that he's filed an answer demanding a jury trial go back and reconsider it in light of the demand would that make some sense well we would certainly welcome a reconsideration of the motion to compel a patrician in light of the answer in the jury demand was there that the answer had been filed and so had that been filed it might may have made him made a difference in his decision would that be a good resolution of this well we think that it's clear one way or the other that this is a matter of law and so the bankruptcy court really is not going to have any discretion here and so it would probably just be more efficient in terms of do still khana me to just rule now that because this will have to go forward in district court if it's not arbitrated there is no conflict from arbitration with any of those bankruptcy good morning may it please the court corey webber on behalf of the police chasing them around chapter seven trustee your honor is the question here is really whether or not the court is going to apply thorpe according to opponent's position for really has no relevance that the big groups the court have had absolutely no discretion to deny arbitration and that's simply incorrect under the both night circuit cases from twenty twelve which state that if the appeal the appeals court looks to see whether or not the bankruptcy court had discretion to deny based in statute that as your honor reflected earlier in questioning it's a claim of creditor prior to the bankruptcy case in creditors in general in the trustee only succeeds to those rights by virtue of section five forty four and five forty eight of the bankruptcy code otherwise those are claims of creditors so the trustees the ending in the shoes of creditors on those claims can't be bound by something that debtor at secu to pre position when the debtor never had any rights to execute an arbitration agreement as to those claims the claims didn't belong just so why does it have discretionary call why wouldn't it be as a matter of law and these cannot go on arbitration i think your honor is correct in terms of if this court believes as we cited in the briefs before the district court that claims are simply claims that warrant executed by by the the applicable party is the creditors preposition them i agree there it's not an issue you go to the discretion or non discretion standard  or distort control the issue of who decides arbitron belletti because it says the bankruptcy court has discretion to determine what the whether the underlying purposes of the bankruptcy code discretion has the discretion to not only consider underlying facts but also underline policy differences as to whether or not arbitration is appropriate to the extent that those claims are subject  potential arbitration curtains the answer change anything i don't think it does your honor because you know judge roadless did consider the answer in terms of the motion to stay the thinker the adversary proceeding in the bankruptcy case and judge robel this we liked it that the use of interesting issue the form of appeal in the transcript which is part of the excerpts of record the court stated that specifically if there was no this day the parties would have to march down toward litigation and would be sure that significant time and expense would be expanded and he called it an interesting issue for appeal but i don't think it fundamentally statute and even if the bankruptcy court doesn't have the ability to enter final judgments on those type of claims they still remain core claims let me ask you the issue strictly before us is whether assuming the arbitration assuming there was a valid arbitration whether the very judge has the right to not force it that doesn't answer the question of whether he would still get a any kind of jury trial in district it that far everything pretrial still occurs in the bankruptcy court the bankruptcy court has the ability to file a proposed findings of fact in conclusions of law under twenty eight us c sec what i mean  s a finding affirming the very group c judge wouldn't wouldn't answer one way or the other any possible stern issues right i mean he could still get whatever right she has to to a regular particle through trial be for instance if the trustee words it take depositions in the bankruptcy court and then file a motion for summary judgment the bankruptcy court could rule under that on the motion for summary judgment in proposed o i think at the core it but are the two things that your honor mentioned you know one is that these claims that issue here they're not properly subject to arbitration because they're either claims of creditors that existed prior to execute arbitration provisions take away the authority from a bankruptcy court to determine things like this that fundamentally alters what's in the bankruptcy code the underlying purposes of the bankruptcy code of having bankruptcy court siding get to the bottom of these type of things to avoid piecemeal litigation to avoid impacting the rights of creditors especially where here this is kirkland and her trust asserts a multimillion dollar first priority secured cla that's going to fundamentally affect the rights of other creditors in this ponzi scheme case that is that policy analysis changed in any way by bellingham and stern and the decision that says that these claims ultimately can't be finally adjudicated by the bankruptcy court but they're going to have to go to an article three court ultimately does that does that change the balance in any way because it puts these claims not solely within the bankruptcy court for determination i don't think that  fundamentally does because you know the district court at least in this case has been the first appeals court in the case of the district court has ended up hearing all these things anyway so if the bankruptcy court makes a determination on some issues in the district court makes a determination on another issue it still goes to the same source what appellants are proposing is that a private arbitration panel result in a facto bankruptcy it's not something that's decided by the bankruptcy court it's not something that's decided by the district court it affects the ability takes that discretion and the court's authority away enhance it to an arbitrator to decide and  i don't think that analysis in bellingham and executive benefits changes any of that the only thing that let it changed is the ability of a bankruptcy court to enter a final judgment instead they can enter a proposed findings of fact in conclusions of law in fraudulent transfer is intent is in the federal arbitration act and the court can look to twenty eight u s c section one fifty seven b which clearly lists the court claims includes all these claims  claims and even if they're not constitutionally core and there's not the right center final judgment after bellingham an executive benefits congress is instead intent was still to have these as court claims and that hasn't changed after these cases to me is just purely practical question just what kind of understand the real life the ramifications of this bankruptcy judge entered his order in twenty thirteen correct theory or twenty sixteen the ball hasn't advanced really we've gone three where it's a ponzi scheme case in this case there are roughly a hundred fifty million dollars in claims filed that's not to say all of them are accurate or they aren't supercuts but that's sort of the scope of claims that were filed in this have suggested is taking the decision on a first priority secured claim for millions of dollars and taking that out of the bankruptcy cording letting a private arbitrator decided and especially in a ponzi scheme type case the trustee believes that's fundamentally unfair to creditors it's unfair to the process and the kirk ones only seek to enforce arbitration for their benefit they think that they're going to get a better shake an arbitration and they would by taking this in front of the bankruptcy judge that it's over one hundred of these adversary clawback proceedings and from judge otero the district court judge who's reviewed several appeals including several appeals from the kirk ones that he has this mess and so it's really about fundamental fairness and you're right your honor it has taken years and we get calls all the time from creditors asking when the conclusion of the bankruptcy case will take place in we'd like to push this along and bring this case to a conclusion but we don't think it's fundamentally fair to have that done by an arbitrator when it's such an important claim it's a secured claim it's picking up on your honors last question which really i think gets to the heart of the matter arbitration really would be a much more speedy and inexpensive way of resolving this dispute and it would achieve a lot of the purposes of streamlining that the trustee purports to advance here now the trustee says that that would be unfair and that would lead to a de facto private bankruptcy in fact and this is all based on his notion that the bankruptcy court can somehow adjudicate these claims again without all just his opinion it's also the bankruptcy judges opinion right and with respect to the bankruptcy judge that that's incorrect because the bankruptcy judge is not going to be finding the facts with respect to the fraudulent transfer claims those facts if they're not determined by an arbitrator will be determined by a jury in a federal district court so the risk of inconsistent positions or factual findings is present either way and it would be much more speedie to do it in arbitration so i think for everybody concerned arbitration would be a much more cats if it did you agree with opposing counsel that only the fraudulent transfer claims are subject to a very trial not of those claims which overlap a lot with the fraudulent transfer claims and then the bankruptcy courts power to order priority of claims would still be preserved you could take the factual findings of the arbitrator and then determine whether those warrant disallowance are little subordination of the proof of claim now the arbitrator talks a lot again about the capacity in which she's bringing his fraudulent transfer claims but he does not address the fact that this is an arbiter billet he issue which the arbitration clauses have clearly and unmistakably delegated to an arbitrator to decide so a court should not be deciding whether the arbitration clause applied to those claims your client properly preserve that for appeal that question yes yes we did in fact that it's in to properly preserve the capacity argument because he did not make that argument in the bankruptcy court he made that for the first time in his answering brief in the district court on the first level appeal and then in reply to that answering three from the district court we made the argument that in fact this is an issue an arbiter ability that has been delegated to an arbitrator to decide what the first opportunity when it was first raised by the other side we did raise that argument in the court below so the trustee also mentions that we tried to distinguish thor ybor when we do the work involves a claim that really was intertwined with a court proceeding whether you consider the fraudulent transfer claim here a core claim or a non court claim or what it probably really is the stern the marshall claim a claim that is designated or by the code but it by under article three must be tried to a jury in federal district court the result is the same there can be no conflict from arbitration because either way the bankruptcy court is not going to be deciding the factual merits of those claims so the most efficient disposition is to order arbitration of all the claims here thank you group no you know but if i could ask