hello in your arsenal and these tapes are often compiled separately so he could give you a name for the record i'm jake jorgensen i represent a taliban with bonnie snavely and this is really the attorney's fees portion of all of these related cases which have been brought up from the bankruptcy courts numerous orders in this case all of which have been appealed and grieve with the same opposing counsel and in this i feel of this order we argue that the bankruptcy court they are going to award in attorneys fees and the amount of ninety thousand dollars he gets mislabeling and the court here for several reasons first it misunderstood the exception which allows bankruptcy court is the bankruptcy court of the debtor and i admit it gets confusing in this case because now when there are two debtors and it it appears the bankruptcy court believe that because mr miller was a debtor in bankruptcy it was not that's that is the references to the home bankruptcy court of the debtor now the confusion is who is the debtor and it's clear i believe when you when you stop to think about it that in any bankruptcy case the debtor is the bankruptcy the bankruptcy in that case and i think i have  analogy i think that it was traits quite clearly in cases like bank cases in cases involving thanks cases involving perhaps giant corporations like enron that fail they may be involved in bankruptcy litigation of the former employees around the nation but if they file if the if the corporation itself then were to file its own bankruptcy so that one judge could have protection over all of its assets and avoid the assets being noble the way which is the point of the stack then the corporations a bankruptcy judge rather than the potentially thousands of other you know potential bankruptcy proceedings that might be out there is the home bankruptcy judge and that is the exception to the stay that applies here  the only one that's claimed by the by my by opponent and by the bankruptcy court is this exception for the home bankruptcy court so if the bankruptcy court was wrong on that it had no authority to order the ninety thousand dollars now the bankruptcy court was wrong also for a few exactly right them in this case the montana bankruptcy court awarded ninety thousand dollars in fees after there was a bankruptcy filed against that against mr i mean after misnamed we filed her own bankruptcy in washington so washington is the home bankruptcy  agree that washington would have authority under the exception for the home bankruptcy court to have awarded something against her but not montana it's not any bankruptcy court it's the home bankruptcy court which can think can continue now the basis for the award even if even if we were wrong on that point is also erroneous that's the state court i mean the bankruptcy court in montana again said that as a matter of state law and the interpretation and application of state law the state courts had already concluded in these very specific facts after a two week long trial involving all of the same witnesses that the bankruptcy court it looked at looked to even using the very same exhibits that the bankruptcy court then used with the state law is i really think that is that's the end of it under our federal system that is what state law is and telling higher state court weaker on that point washington law says that an oral ruling is not entitled to produce of effect until the written ruling is entered but again in this case the state court said i do have authority to enter that written ruling matter of state will for the bankruptcy court to then say based on a three day trial that the state court was wrong after its twelve a trial as to whether the trust continued i slice with medicare and it's disrespectful to the state court constant contrast to my previous judgement where i say the only few moments i think i'll save the rest of my time for a bottle of this one thank you made against which the court my name is john binney appearing on behalf of the pelley the miller in this case are of three three five eight nine four i do i don't believe i'm going to need anywhere near twenty minutes on this argument but i do want to run through the courts and bil the faction is one of the procedural posture which i haven't in the prior ones we're going to discuss the home court advantage exactly your honor i will get to that in this case a final pretrial order was signed by the parties and ended with the bankruptcy court in montana i will try to specify montana and washington i believe on august twenty second two thousand and one and that final pretrial order was subsequently these are in the excerpt of record that's subsequently on october twenty three two thousand and one the montana bankruptcy court entered an order supplementing the pretrial order and specifically included there were there were amendments that were on behalf of this neatly where things were added and of what was added on behalf of mr smith mr miller in that order was a claim for attorney's fees under the washington law so that just to be clear in the initial brief the psni we filed they said that that was not part of the pretrial order but it was by a minute and i want to cover that trial on this matter occurred october twenty ninth two thousand and one and completed november second two thousand and one and as i mentioned before there were dozens of witnesses and hundreds of exhibits in that evidence on january twenty fifth as this court is aware two thousand to the court issued its fifty five page order and reading the relief i don't go into those detail s subsequent to that time and basically mr miller filed an a motion for award of attorney fees and costs on march twelfth of two thousand through the bankruptcy court in montana denied mr miller's request  navy march fifteenth she filed for bankruptcy relief chapter eleven in washington mr miller didn't do anything after that point in time the bankruptcy court in montana however on march twenty sixth two thousand and two entered the order which those cases do stand for the proposition that it is not a violation of the automatic speed to bring a claim against the debtor in that debtors bankruptcy that is what those cases say none of the cases that i saw cited in the reef nor that none of the cases i could find involve the situation a situation where you have two daughters each in a bankruptcy the first bankruptcy the montana bankruptcy consisted of a lengthy trial which had gone to judgment and all you have left was what is normally considered to be within the found cases on that point despite my research i can't answer that question francis a practitioner that when bankruptcy court is bound by the automatic stay of another bankruptcy court my experience is that caution being the better part of valor usually if you want to do something in the other course that you go to the to the first court and requote and request a relief from stay and i'm sure or the miss neves counsel will make an issue of that but in my practice i would admit that so my understanding of the lawyers now is from an unrelated parties just to give an bankruptcy's that they've got something that overlaps how is this case taken out of that answer and that's your honor i'm glad you asked that question my experience has been that's always come up at least in my experience in a situation where you're just filing in or whatever you don't have a final judgment that only that all this left is to determine been laid against have said well you can't even sue me in my bankruptcy court and what those cases simply state is that that's not correct even though the statute doesn't distinguish basically you can clearly pursue you know the debtor in that bankruptcy court essentially what we have our position is what we have is to bankruptcy and that in the the bankruptcy court in montana had tried these issues and there were claims going both ways there were claims that benefit you know that snavely brought her proof of claim that would benefit her estate and it's our position that essentially and i think the judge peterson in we have the two cases they're all being tried in one it's our position and and especially mr miller wasn't good taking anything affirmative in other words his last affirmative act was request attorney's fees on reconsideration before mislabeled filing that's our position that that that he had no further obligation to do that and that the state did not apply and although this is a point of contention i would indicate that judge diner this issue was presented to him and he said essentially he was going to take no position on th bankruptcy judge here in seattle which they can hope is issued on that and it's our position from a practical standpoint that the that the court should approve those attorneys fees and and not find that the automatic steve violated because otherwise what we have is a situation is the claims are arguably in both cases because there were claims by both parties against each other we've already decided in one case i guess are we going to signal that off and just try the attorney speech issue in front of judge sonia particularly where he said he wasn't passing on it my problem is what case was flying to support what you just told us we should do your honor i have to i have found over specific cases on that all i can tell you is the cases that they have cited don't go to that issue either they only say that it's not a violation of the state to sue in the ho mr miller's bankruptcy in which she had three sets of able counsel i think she has more here but she had three sets of able counsel there that was the form to do it and that's our position that that that was proper for judge peterson in the event montana court to conclude the issue on the question your honor particularly in the day after election day i would say that you know obviously this particular case it was end of the court in all candor i think it would be best of congress were to decide those issues but we have what we have in  terms of this case and i would request that this court decided and i think from a practical standpoint and given judicial economy in the resources of these cases of the proper decision with in this case would be to determine that judge peterson was correct and to affirm the award of the attorneys  determined that it did not violate the automatic state given you had to bankruptcies and that the matters have to be resolved in one and essential if they were second turning to the specific arguments that there wasn't the basis for determining the attorney's fees was wrong and i'm not going to go over the argument i made in the last one in any great detail but to the extent that mr neighborly is relying on ridge judicata again certainly our position that precluded in this case those the issues that they are talking about were discussed in those three prior cases those were final and it is a more you know that there was some indication by counsel that this was just they were just dismissed as moot because the property was  that was true in part but this court specifically affirm the granting of the easement by the bankruptcy court over a property that was in the form of trust so that that wasn't a decision on the merits and essentially that we believe precludes their argument in this case as well that rescued a part of precludes this award i don't think that's a major point in this matter but it is something that i wanted to bring up since counsel has raised that in terms of the specifics i think that the bankruptcy court in montana in the record and in applying and in reviewing the proof of claim and in looking at the underlying basis for the proof of claims that the that you filed that's based in washington state law on the bankruptcy court have the discretion and properly utilized its discretion and warning the ninety thousand feet and to conclude my arguments i would just indicate that the amount that was arrived at first of all there was no objection by schmidt was counsel that either the hourly rates or the number of hours were improper  those amounts were not an issue from a reasonable the stand point it is that the bankruptcy court in montana did indicate that in looking at the amount they were two claims that were being handled by the attorneys for mr miller one was on the tort claims which there is no basis for attorney's fees and the other was on the proof of claim objections and the benefit that mr miller see there the bankruptcy court analyzed that from the standpoint of that roughly half and half were awarded half of that and he support one court as you know the ability to see all of the debtors assets and the ability to then avoid them being nibbled away at peace will by other litigation that the judge doesn't have control over and may not know about and hence the bankruptcy appellate panels term you know you are i'm glad you raised that when i initially went through the grease i wondered at your century driving at is is this just expanding the litigation to file a bankruptcy and the answer is no because of the ongoing litigation  washington home court advantage no your honor we we did not take advantage of the state law and state courts this is what washington law is really the predominant law here and was being applied by the montana court i mean we filed there really for the convenience of that's the debtor is that's where they have many of the assets are and so it's you know convict convene for the court opinion for the better and i would say that you know this name lee who genuinely needed bankruptcy to keep her just or her home from being taken away you have has the right to file  in washington so it really was not a bad faith we were not trying to evade evade judge peterson now let me go to the factual underpinnings the basis of the award of attorney's fees and again now those very claims even if i lose on king county which i find it remarkable that effect federal court would say to a state court i find that you are wrong as a matter of state law on this very case but even if we were to lose on that we hundred eighty five thousand nine hundred ninety five excuse me bankruptcy litigation where all of those claims that i just went over were specifically raised by mr miller now his answer to that as to why the attorney's fees are still really go to the idea of elements of a claim you know that let's say in it in a claim there's three elements it is true and i will concede that if before litigation happens one element is satisfied and then there's the gauge with the parties and then further facts produce element to an element three you're not raised to cut as element one you can go back because you could not have filed the claim at the time but here not only were the claims specifically sort of but they are the claims that she failed to properly give emanu but again she's no not at all your honor i'm saying that even if the bankruptcy courts judgment is not impacted by the king county judgment it cannot tell from a cold yes but there's not and it's not clear that it's sufficient misconduct it's not clear that if you were a trial judge and you were and you had not made the error that the bankruptcy court made by including pre nine hundred ninety five stuff that you will still would have reached the conclusion five and after nine hundred ninety five so at a minimum the case both cases are to back to the court to say you may not rely on pre nine hundred ninety five breaches and then the court if it if it still believes that pours post nine hundred ninety five is sufficient and then say well ok suppose ninety five ninety nine to five sufficient to reach the same the same points let me just briefly have the what the washington bankruptcy judge said he did not say that he was going to allow the washington is i just i just don't know i'm not going to make any ruling on this so there's there's no rule there's not a referral certainly to another court even if there could be there's just you just withholds judgment as to the issues if you are trying to fix so that's really  the argument was made that attorney speeds are really just part and parcel of the greater case and the court had jurisdiction over the greater case as the fact that i had to get up here and interviews myself to twice shows attorneys these are our separate award against the debtor they had