and also of the subsequent non conforming judgment and of may twenty first two thousand and three by the honorable eastern district bankruptcy judge cristol kline the minute order purports to grant a motion by the chapter seven trust to the fact that mr raines lack the mental capacity to enter into any business affairs on the date of the mediation which was the same day that he went in for surgery for the brain aneurism the judgment entered three months after the middle order on s part the application was separately appealed on separate grounds that it contains extra duty judicial declaratory and injunctive relief which was never before requested by the trustee and which protected mr ra he section five forty one and also that it was subject to execution and that's an important distinction because in order for there to be a finding of property estate there needs to be an adversary proceeding  being listed in an abundance of caution and the bankruptcy court you don't want to be accused of hiding assets so that counsel was very straightforward wasn't me it was another just because bankruptcy counsel was very clear that that that he does own a retirement account but that the court jurisdiction of the court as a matter of fact the contrary was specifically expressly indicated in the schedules this is not the court doesn't have jurisdiction over it and this is a common practice in bankruptcy practitioners that's all i do and we are very careful to be very straight we come in with our hands up you know when you represent a debtor because you do not want to risk the discharge by being accused of stealing assets let me ask you question please i'm a little confused on the impact these parties went to mediation in mediation it doesn't matter what the law is what you're trying to do is arrive at the sentiment that both parties are walk away from so they extent that wasn't an agreement to extend the strains had the mental capacity enter into an agreement you keep going back to them but that's a different issue based upon findings of fact just stay with us on this issue you're on our there was no agreement beyond allowing the trustee to prevail on suggestion to the claim of exemption recall the claim of the exemption doesn't have to be made if it's not property of state the court has no jurisdiction over that asset and so it's  an tailing nation provisions which prevent the assets in whether they're distributed or otherwise prevents them from being subject to execution and so well this range has a new title meant for the retirement plan the definition of property in american bar association is a glorious organization my question is simple if there's just one percent in the plan it's not qualified and you can get all the american bar association trappings you want there's a record show there was one more than one protest but your honor i would maybe because of this agreement the whole rest of the question is out because parties have come together on how they're going to settle the matter and the issue is not before and what your honor the agreement does and says nothing about whether it's property of the state and there was no intention to the extent that as you have to he's rangers agreed to pay money two hundred fifty thousand dollars and all walk away why isn't that sufficient i mean it doesn't have to have all that all the regard matter of fact i'm not sure it was me in mind at all with respect to this agreement in light of mr raines smell capacity you know he's going back to an issue it's really the fact your argument i'm sorry your honor it's been we understand your argument and there was a finding of fact on that and if you could just stay with our us instead of going back with really how well you know i just don't want to be perceived as waving that and that there is a question as to there is that question but i understand your honor does not want to address that  the there is the trustee may attempt to divert attention attention to the question of whether the minute order was final for purposes of the appeal believe this is a red herring that the district court accepted jurisdiction over the appeal the middle or versus the quote went on to dismiss the appeal of the judgment on the grounds that the judgment was already on appeal by operation a bankruptcy rule eight thousand two a offered no guidance as to how he might challenge the judgment on separate jurisdictional grounds presented the second appeal or in what is that the bottom line is that the issues raised in the two appeals are completely different i believe that they're both final orders for purposes of the feel but it shouldn't matter at this point seeing as how there's been a consolidation and join regardless of how he may have appeared physically ranes was due to the aneurism in the words of this treating physician without the mental capacity to engage in business to bear on the date of this admission and a number of days and he started at eight which is the are mr raines were in a better position to give evidence regarding his asking of mine at the time as opposed to someone who is looking back and determining what his capacity would have been without the mediator and he goes over the ground rules and everybody is put into separate rooms it's and then the media bounces back and forth this is the bankruptcy dispute resolution program in the eastern district only at the end of the proceedings when the docking is being signed does everybody get together and sometimes they don't even get together them because they you know they don't like each other very much but in this case it's my understanding that that was the time when these percipient witness witnessed him but not when there was negotiating back and forth between the what you would you have as you have a you have the opening and then you have the opposition there's an old rule that closes that and if you don't get in before the local rules then you have to get permission and it was turned down why you are you saying  and they have a local rules to advise counsel when they have to do certain things if they fail to follow those local rules then we've held in quite a few cases that that the district court has not abused its discretion by going ahead and had the operation and that it's actually his doctors they claim that he had that he was on cape incapable at the time of participating he knew that mr raines objected to the settlement because we woke up from surgery at some point  that's different from saying he's going to bring in your witnesses he's not they're not there his witnesses to prove that there was that there was not there was no capacity that was what this was all about mr hussein he has to anticipate your witnesses they encounter opening can that that's your argument you're out of the burden of proof is on the trustee to prove that there was capacity under the circumstances then our position is is that a minimum if he's going to bring the witnesses on it seems to me that the court should actually sizes discretion in calling witnesses or allowing percipient witnesses to be impeached and by not allowing that to happen they created a biased record but the problem is that may be ideal but issue is whether or not there is a due process validation of the court does not follow that format and do you have a case that you can cite to us the chance that the failure of the district court to require  explain why that doesn't preclude your challenge to the award of that amount from the pension plan to the trust to the state because your honor i appreciate the arguments that have been made it's because the agreement that required him to pay two hundred fifty two hundred fifty thousand dollars to my client mr raines as an attorney and a former california state senator when he filed bankruptcy he disclosed that he had a retirement plan with approximately seven hundred thousand dollars and that he was the trust or have an offshore trust with assets in excess of two million dollars let me geisha and food and it went to a settlement conference and it was resolved mr raines agreed to pay two hundred fifty thousand dollars to the trustee he then decided he didn't want to pay the two hundred fifty thousand dollars and the bankruptcy court  initially in course the settlement summarily enforced it and approved it which is required for a settlement and then ordered him to pay two hundred fifty thousand dollars from the retirement plan to the trustee  subsequent judgment the appeal from the settlement order is very simple each side presented its evidence and the bankruptcy court made a factual determination based on the evidence before it there was evidence to support the bankruptcy court's decision that decision cannot be clearly erroneous and it must be affirmed the appeal from the judgment is also very simple it implemented the settlement agreement yet the district the district court ruled that the notice of appeal was untimely because the initial appeal was determined to be a premature notice of appeal which cover both the judgement and the trial order there is a substantial jurisdictional problem here because we have two appeals and only one final in the context of an adversary proceeding the normal rules of finality should apply and every terry proceeding is initiated by a complaint and it is concluded by the judgment and what may or may not be concluded in the in the ordinary course of bankruptcy proceedings you can have then if you if there's a motion for relief from automatic stay that can be held to be final if a chapter eleven plan decided in the motion to enforce the settlement agreement well then i'm not sure why it was necessary to have a judgment i mean you can make the same argument about any case that you know a case in grants a motion perch summary judgment you have the order but until there's a there's a judgment on it it's not going to be appealable but that's not necessarily true either if the part is treated as final and the court treated treat it as final and then it or it can be entered and that can be appealed but the question i have for you is what case that you're relying upon the proposition that in an adverse perceiving in bankruptcy court that there must be a judgment in order for there to be an  appeal i'm not that's not quite what i'm saying i'm saying that the the flexible rules for for finality in bankruptcy proceedings apply in the context of bankruptcy proceedings not did refer to the flexible concept of finality in bankruptcy proceedings and distinguish the those cases otherwise we wind up with a situation where precisely like this we get you have an order which really isn't final being appealed and it gets it gets confused because interlocutory orders are appealable to the district court but they cannot be heard by was yes there was no hearing on the terms of the judgment but that that does not mean that there was anything wrong with it in fact i think there's anything wrong with that i'm saying to me you're trying to have it both ways you're saying that or it wasn't final but on the other hand if nothing else needed to be done that for the court on the judg i guess that's how it has that's how i see it and if there's a kick if there's a situation where a judgment has to be entered you have in my view you have to wait until the judgment is entered before you can appeal it and then what is appealed is the judgment not because if there was if the initial notice of appeal was premature then it was a it was deemed to be a notice of appeal from the judgment as soon as that w entered which meant that the bankruptcy court no longer had jurisdiction to hear post trial motions now we've had some cases say and i don't understand you understand banks law that an idea of time i get into and i think this is a strange to do other things because it wasn't really a bankruptcy matter it was a it was a rule of civil procedure type matter judgment is entered notice of appeal is filed the lower court loses jurisdiction over understand is that the appeal didn't come up till the second after that's when there was a final judgment i'm not sure jurisdiction that's correct so i don't understand why he said there's no tolling because the banks court lacks purist action over the motion of the court and i under the under your view the bankruptcy court never lost your stiction by the premature filing i not sure that that it's my view because i'm not taking a position one way or another on how the appellate jurisdiction issues should be resolved i'm throwing up my hands now counsel you can throw up your hand impossible for you to get as an officer of the court to give your view i can understand that now i'm not saying that it's a difficult issue it doesn't allow you to throw up your hands because that's not your responsibility as i understand it all right ok something the ruling of the district courts view was that the at the final view was that the initial order was not final there was a notice of appeal and the notice of appeal because it was premature leap forward and coverage of the judgment that was subsequently entered and that that is appropriate that that's in  was not a melody it was not and it according to the district court was an appeal from the subsequently entered judgment it covered the subsequent judgment o so what you're saying is that that appeal becomes a real appeal and includes what happens subsequently so we don't have a time problem that is like andersen versus all state where you file a premature appeal but then time catches up with it we say it's ok her and this is the same theory here that was the district court's theory and i think that's probably the best theory because i think that preserves the maximum amount of the appeal and then in that circumstance we don't worry about the timing problem and the rest of that we have both appeals before us at the same time except it really ought to be just one appeal that we include all right i think i wound up using a virtually all of my time i do want to point out one thing mr raines play and it is a single t was never mitigated below and it's not part of what needs to be resolved here because we're going on the basis of a settlement not on the basis of a mitigated trial the settlement judgment that something different in your view and my question is if you vary from the terms of the that moment in the judgment is it ok to do that ex parte because mr raines never got the opportunity to argue no i can't go down and get i don't have to going to get this money that's not what the telegram and that the settlement agreement said that he would lose his exemption as to two hundred fifty thousand dollars of the funds in the plan now that's a different issue than going to the to the account and taking the money out will look great that those are two different issues no your honor why not because only property of the estate can be exempt that there's two hughes to be saying something different that now you're talking about it finding it and he's not saying that he and it has to be a standard all that all has to happen is that mr raines needs to withdraw two hundred fifty thousand dollars from this account or from other other accounts in order to satisfy liable for any obligation liability of any person but you know something in but if mr if mr raines goes out and buys the boat and then finally does have enough money is in his bank accounts decides well i'm going to go take it out of my wrist account he can do that and that again that doesn't mean theorist account to the to the boat seller in your honour's is assuming that there is a voluntary relinquishment here by mr raines and perhaps you can do that i don't know we haven't addressed that issue but mr raines definitely put his foot and you can't get to th property estate doesn't need to be exempted there was a precautionary exemption and it was objected to equally precautionary by the trustee but there's never been any litigation or any determination that this property is even subject to the bankruptcy court time i was sent find give it to him we don't care they can object to exemption all day long and they can prevail but they still can't get to this to this pension plan because the anti elite mission provisions which you can't waive and and we've already demonstrated in the schedules that it's not