over well we have no custom missed here and let me ask you a couple of questions it's my understanding that when the defendant or when bailey files or chapter thirteen bankruptcy she sends notice to the sheriff and to your client that's correct and it's my understanding that at that point she exempted the four thousand in her schedules under the wild card exemption but correct did you ever object to that no and we had no objection to it so you didn't care that it was under the wildcard exemption no ok so the next question is she files a motion to avoid the real i'm sorry your it's now exempted because she didn't object object to that the real property no the four thousand dollars in her schedule no the fourth dollars wasn't part of that leno void fund just a minute say there was however we started with she filed for an exemption of four thousand and her schedules and you didn't exist you did not object but her so the four thousand was exempted because you did not exist object that is not correct your honor ok what did you do to keep it from being exempted we didn't do anything but it was the passage of time it didn't become exempt in tell the time and  exemption is final and valid right that is correct ok and has and let me ask you not a question is it also true that your client or you want somebody contacted the sheriff and asked the sheriff to stay any further execution of the judgment and to hold all levied funds pending further instructions from the trustee or you that's not really correct your honor the further instructions from us if the case were dismissed well would just a minute my understanding and that's why i'm trying to understand the facts that you contact the sheriff you say state any further execution of the judgment suggesting that it isn't further it isn't totally executed at this time and then to hold the funds pending further instruction if that's what you did then and you didn't object to the exemption and you didn't object to the motion to avoid the real property lien i'm trying to understand why it is then you didn't violate the stay by not allowing to pry the funds to be turned over well first of all we didn't stop the funds from being turned over well just a minute if you just said you did said you contacted the sheriff and asked the sheriff to stay any further execution and to hold all of funds pending your further objection not that's not what the instructions say they say  pending further instructions from the court the trustee already has and there's a parental sees if the bankruptcy cases this mess that's the only time in which c thirteen zero three and thirteen zero six b it seems to me that the chapter thirteen debtor is in possession and retains control of the operation of chapter thirteen would you agree yes so at that point the only way one gives money to the trustee is when the payments are to be made pursuant to the plan would you agree with that yes well then there is no money to be given in any trustee because that would be pursuant to a plan and this is money that has not been executed it should be turned over because in fact the debtor is in dead or in position and retains control but it should be turned over under the auspices of an order from the court or the trustee we don't have the jurisdiction as a creditor on the demand of the debtors attorney to just turn the money over because there's nothing in the code don't have any you don't have the money that's sure has the money that's correct and at that point you shouldn't be involved in telling the sheriff what to do it sheriff should do whatever the sheriff wants to do and when you get involved and say mr sheriff don't be turning that money over unless then at that point you're trying to take control that's what we're after here are you taking exercising control over property of the estate and it seems as if given the facts you've agreed to you did know your honor and one thing i'll point out is even if we had instructed the sheriff the turnover the money they still wouldn't have done it they need an order from the court to do what turn over not from the debtor or from the trust thing but doesn't this case basically turn on best contact with the sheriff had best done nothing but simply stood mute when it received the automatic stay order would have been in violation of the statute yes i think we w because we had no way of knowing that the debtor had instructed the sheriff to stop levies sometimes they do sometimes we don't when we had notice we were under they automatically stay obligated to tell the further collection actions without saying and hold on to the money until you either receive an order or a request or the bankruptcy is just in hindsight that's what they it will add to the attorney should have done that's what i communication i think it's clear that we are not telling them to violate the law we're not telling them to do anything you can take things out of context but the overriding me statute is it's telling them that you should to do this pending further orders from the court or from the trustee seems to me that what you're really saying and i know i'm looking at three sixty two a two and a three we've talked about exercise control over the property this state now i'm going back to do which is the enforcement of a judgment obtained before the commencement of the case under this title it seems to me that enforcement of a judgment no question this judgment was obtained before the commencement of the case no question you didn't even object to the fact that it then the judgment went away no question that you told the sheriff not send out the funds but instead to hold them why isn't that an act of enforcement because it's an act of holding the property of the it state its act of saying this belongs to the estate don't do anything how much just a minute why couldn't you have said nothing why did you have to try to enforce the judgment that you've attained getting that far along with the four that's what we were doing but as i said earlier i my associate put that in there i wish it hadn't been in there it's a problem with the case but i think i'll let me ask you if you read more  guarantee trust yes why is mark what do i do with morgan guaranty trust when i mean when i'm looking at your case in morgan guaranty trust they said construe the provisions of the automatic stay broadly the creditors have a duty to seek relief from stay and turn over the property the estate upon the filing of the bankruptcy so it seems to me that it had you said turn this property over mr sheriff and filed relief from stay morgan would have been your best friend but should indeed so morgan seems to go against you which i'm bound by well your honor what i would suggest to you is that with morgan that creditor actually had the money i know you he was in a better position than are you you didn't even have the money to be at the judgment wasn't even it wasn't even done what i is that creditor was in control of the money so are you if i send you out of a letter and you then try to take control which is exactly what you did well i don't think we did try and take control have control well i don't know what they did and i like to see maybe the sheriff was what are you going to do in the in re crouse in re crouse the share of seized property and while holding the property the bankruptcy was filed the creditor refused to allow the return the district court said violation well i believe that's the one where they also went that's the lumber case where they tried to have the debtor ex communicate cases your honor are ones where the creditor actually does something to try and impede the bankruptcy so all you're saying is on appeal you should look at what the district court found doing what they had to do making a discretionary decision and determined that the district court was wrong yes because we're in a different spot yes  ione deference to that district court decision no i believe that was just a minute we're talking about facts here and the up and the appropriate way to review the facts and you're saying i don't know any to law but he's asking you about what we do with the factual determination and isn't that a clearly erroneous state of review i don't think so when it's an issue of law that's being barn they still got my car they hit my bank account there's a wage garnishment can you get this property back to our answers of course we can get it back they think that means will file a few papers and the she that afternoon no no no we're going to have to do some arm wrestling with the sheriff it depends on how much the creditor cooperates that that's going to have to do with how long it takes to get the money back but what we don't do creditor or somebody else has their property we will have to file a motion will submit a fee application for that that will go under the plan in the trustee will start paying us our fees for filing this motion and the reason we don't do it though is it gets worked out i can't think of me really other than this in fact yesterday i actually went you know this five twenty two f motion wasn't on personal property i wasn't sure whether there was a position we're not going to do anything until it judge tells us to do something or the creditor withdraws its request that we commence execution proceeding yes right so we have the bureaucracy that says the safest thing to do is just freeze everything right so do you agree that when best had best stopped at that point and simply told the sheriff the automatic stay is in effect stop execution proceedings on our judgment they would have been acting within the law and not in violation of the automatic stay but that when they then told the sheriff and hang on to the money either a court order a request from the trustee or the sation of the bankruptcy in which case then the money comes to the creditor that that's that was the as i characterize it the inconvenient fact that that renders best liable for the violation i don't think there's any doubt about it i agree that i mean if if two months into the case we still didn't get the money back and they hadn't written that letter and i'm not so sure we would have been quite so vociferous about your violating the automatic stay we still want to try to work something out with and tell the sheriff we need this you know the money's or discharge right here they don't get the money if it's just charged they get the money only if it's dismissed and by the way that's one reason why these things take a couple of years it's not unusual that it's a couple of making payments we have them made in a creditors and in this case by the way the plan was confirmed they are making the payments to today but you know a couple months into the case you can see it's a real case who needs to fight about well had they not written that first letter what they should have done and i have i'm completely ok with the fact that they should have cooperated they should have written a letter and an email or called and all i really needed to say to the sheriff is we're not going to sue you they coulda said we have no power we can't tell you what to do the code says what it is but we won't go after you win a share saying b  say are you sure you're not going to take this is that what happened is in the april twenty second two thousand and fourteen meeting when the parties met did you describe this to the test no i personally was not involved in the case up tell them i did did that hargreaves describe this what you're telling me because it seemed to me there was a time when the parties were meeting and at that point bess would not do anything the only thing they would say is trustee can decide but we're not doing any more you know and in fact we can't because we'll be violating the sky and no you know were  released i'm not a big in favor of bombastic letters giving the other side what for it was an attempt to get a resolution without going to court well the problem is you've got such a small amount of money you're going to burn it up in legal fees before you ever see the four thousand go yes and frankly we'd have to do i wouldn't be surprised if this doesn't come up once a week we'd be filing a motion on every single case we have after this and the judges would be  you doing this for why can't can't you just work this out can't you just call the creditor and if the answer to that is well we call them there was no response i'm not sure the judge would be terribly happy with this allowance you know they wrote to the sheriff the central district of california there's a home in the center in the san fernando valley there's only one trustee liz rojas and her her area goes up past santa barbara and she gets a few thousand you asking me for that it's obvious that the my and that's what i've thought about is it's also i believe tell the client we will get that money back if there is no conceivable argument put it you know by the way it is different in chapter seven and most of these cases are chapter seven cases but they're not money bonsa trustee you know there are larry i tell you know your cameras your golf club belonged to the trustee you have no standing  i am curious next time i meet one of the bankruptcy judges i'm going to say when's the last time you saw five twenty two f motion on personal property and i didn't even remember that there was a formal just a date these things get an order issue a public opinion to create a safe harbor if you're going to create a perceived here whereby creditors do not excuse me debtors do not have to do turnover orders and they are exempted for put in a published opinion so we creditors to follow it don't have to worry about being served well let me ask you a little bit about the practicalities here the cases address the concern that because the debtor is in dire financial straits courts generally try not to put additional work on the shoulders of the debtor because it just as mr hayes does mention it just runs up the legal fees that are ultimately going to reduce what is left to pay the creditors so the policy of the law seems to be against the position that you seem to be taking that it's up to the debtor to go to the court and seek additional relief well but as i'd help me help meet right the disposition from the creditors standpoint what would what should the rule be that's clear to creditors well you came with the hypothetical of our letter and stop at the first sentence yes we would not have been in violation of an automatic stat right so if you basically give us that safe harbor and then the result that you want to achieve or certainly there is well they want to write we're trying to do justice here we're trying to write a decision that will be clear to the bar and to the bankruptcy judges that are going to have to follow the process my we don't want to muck things up here is that now i go ahead my suggestion is a creditor would be a very big mistake was waiting with filing all that's before the exemption per that's thirty days after the first meeting the creditors will follow deferred to they're the experts in bankruptcy isn't thirty days after the first meeting of the members so so we're talking about if we adopt your position  and that's why i posed the questions to you i was insurance defense counsel i never knew what bankruptcy was all about and frankly it seemed like all the bankruptcy attorneys were a bunch of cliques they all go the bankruptcy court and they all know what they're doing and the judge they all get together and play golf together and they all may creditors and they all ok well they don't necessarily hate all predators because they got the trustees lawyers their nee munder to other creditors but the bottom line is i've never seen a situation like this where i even an insurance defense lawyer took the end reasonable position don't turn over the funds when it had been totally levied it seemed to me that even a guy outside the click would understood if you don't have it in your i mean i was even better on people having it in their in their best pockets then they might have a little more opportunity but at this point there was nothing left to do and the normal course is to work it out so that the attorney's fees don't go up and all creditors get more and that's something that it didn't seem like you were or  not yours i don't know how you make that argument this money was never yours i'm not ever in your client's possession never subject to anything never levied never not been just money that would have been in the bank and how did you have any authority to do anything except say we don't want any part of this go do what you gotta do that's in essence what i think we said you're i don't think you said that i read your letter ok well that's what it was supposed to say and i would like you know so that we can get some binding precedent i would like the opinion to address the issue of what happens when the letter does say that stopped the levies and doesn't say anything else because you're creating a safe harbor to do that well guess what it's a little bit difficult to make a big law from this circuit i mean i was in your shoes and i didn't want him to make big law i wanted them to address the issue in front of them and say that was right or wrong the issue in front of us is did that letter of yours do more than it should have done if we say it didn't that it did more than it should have done then you lose that will be enough president to me in your situation i don't want any glowing generality of this court trying to decide what to do because i was under the other side of this and i don't like they're drawing