this matter mr boat anchors personal representative who's roxanna ryan i had the privilege of knowing mr mr bott ecker he was a rather unique individual he distinguished himself at a very early age as a war as a war hero but been recognized and he had some very definite strong feelings about things  one thing that happened in his later ages that he became very insecure and took to hiding some assets in a bankruptcy case that brings us to where we are today  i want to you know assure you that i'm in no way trying to excuse mr boat ekers behavior in in hiding those assets however  it is what it is in and that's why we're here today i would like to reserve about two minutes rebuttal time in this case basically what we're here today about is on my side we're going to ask this court to affirm the decision of judge curser the bankruptcy court judge in this case judge kirshner was of course the judge who knew mr boat anchor best knew the facts and circumstances knew that mr botha ecker throughout this case except for initially when he signed this waiver of almost dead always asserted thereafter his right to that homestead that's honor he gave us and he concerned about criminal charges being brought against him there's some question about that his attorney brought up about the question of charges and according what judge curser said he the charges that his attorney was referring to were of course the equitable surcharge the threat of equitable surcharge let me ask you about that and then on this very question of what he to get out of the deal he signed this stipulation waiving his right to the home state and almost at exemption and waiving his right to a discharge right now if he was waiving the right to the homestead exemption that meant that the homestead exemption then wasn't going to be in play so that we couldn't have the surcharge on the homestead exemption because of the administrative expenses i got  now because he's not being discharged are those administrative expenses going to be charged against him in some other way is he going to be liable for those administrative expenses assets of the case that there was in addition the this is this property that was hidden there was gold and silver that was buried out in the yard and what he's not getting but he's sort of withdrawing from the bankruptcy he's not even getting a discharge right he's not going to get get a discharge he's not going to have his goldens over he's not going to have his own well what i'm so what i'm asking is i don't think he's getting anything because if he doesn't sign the waiver that is to say  if he doesn't waive his homestead exemption the homestead exemption will be subject to these surcharges that's the law as it then stood so he's he's going to lose money on that well now he's not in bankruptcy at all he's waived his right to his discharge so it sounds as though the homestead is now vulnerable to the discharge so it's in the to the surcharge so i don't see what he gets one way or the other i do see that if you was worried about criminal charges this was apparently going to get him out of that well this is a long question long lead up to the question if i've described the sort of on the ground reality of what he got and didn't get crime correctly i don't see how the supreme court's decision on the law as a seagull makes any difference whatsoever because he's going to be liable for these administrative expenses one way or the other whether there's some other there's surcharges of the homestead exemption or whether they're just charged against him anyway well it's not i maybe have maybe i'm not understanding something he's not going to be responsible for the administrative expenses of course if there's nothing to nothing to pay those expenses  well but it but he's got a house right he's got a house that he claimed an exemption on so the house can't be used under five twenty two k to pay administrative expenses because he's claimed and he's claimed a homestead on that it what's that why did he sign he signed it because he was insecure he didn't really understand we're talking about a ninety year old man who really didn't understand the significance of what he was doing a couple that he was in the throes of having just lost his wife he signed that and within days within hours he was asking to i don't want to do this proceeding was still going on even though he had signed this pending at the time of the judge kershaw ruled on this there were also motions pending to hold him in contempt for not moving out of his house see predations work like that you know you have ongoing proceedings some people stipulate to things and the process goes on now with the stipulation in place otherwise if you could go back and undo stipulations is i don't think that mr botha acar had any any inkling that he had to do anything once that was submitted in the court looked at that that he had to appeal that if he didn't agree with  it he signed it he immediately saw that it wasn't what he wanted to do he gave up essentially everything there's actually no consideration for there was no promise that the criminal it please the court robert baldwin on behalf of the trustee christy brandon i would like to address a question came up about what did mr podesta get out of this can i get you to turn to supplemental excerpt of record one eighty seven if you want to follow along if not i will just on tell you mr bowdoin e mailing his attorney saying it makes good sense to sell the home i want to move on and make other arrangements this will give me cash and a place to live the next  one i'm sorry ok one eight and one eight nine are his handwritten notes from his meeting with his counsel where in one ninety one ninety one are his handwritten question numbers that cross referenced to the next page that his questions about the stipulation he met with counsel that the bankruptcy judge found was very experienced and competent bankruptcy counsel if you look at one ninety four stipulation about the stipulation saying he wants to have all this behind him in exchange for waiving the discharge and one ninety six mr board eckert the very bottom saying i am going to sell my real estate and move away let me tell you what he got out of this deal and if he didn't actually get it it's his own fault he had silver and gold buried in five gallon buckets they lied about on the schedules and under oath in his three forty one exam when that was found out he had enough money in the equity in his house to pay all these debtors he could have gotten those buckets of gold and silver back and gone on with his life and that was the plan that did not happen however that's why he stipulated that's what these e mails are saying he would have cash and he could get on with his life he could have the silver back but then after he stipulated he got buyer's remorse he changed his mind and he obstruct of the real estate misbranding got death threats from these patriot groups with that she was affiliated and pulled the plug on the sale of the real estate so she turned to the gold the silver by then the prices of plummeted and the sale of that wasn't adequate so she had to turn back to the house to fulfill her duties so what mr bode after got out of this deal if he had a buy did buy it was cash and up and getting on with his life he would have gotten his gold and silver back he elected to waive the homestead effectuate that plan then he and he alone screwed it up now this case is not really a bankruptcy case there was no order of surcharge here and never happened there was no motion there was no adversary proceeding seeking a surcharge mr morgan a competent bankruptcy counsel did tell mr boat dekker you might get surcharged you might get criminally charged about the surcharge he told them about the circuit split the tenth circuit disagreed with platinum bieber debt and told them you can challenge it mr bowden are decided not to dissipate his gold and silver instead settle on these terms waive the homestead so the house could be sold to pay its creditors he would get the surplus back those buckets of gold and silver and he go to utah on that with his daughter that's all in the record that is undisputed this case is not about a surcharge it's not about law of the siegel it's not about section five twenty two this is a contract case he contract it he stipulated i'll give up this you'll give up that and that's how we will progress with this litigation you know judge kirshner's a very experienced bankruptcy judge y the original objection or motion to rescind that mr barker filed argued contract coersion duress consent wasn't free and lack of due process we won on that judge purchase a you're right about all that he rejected every one of the deckers arguments and then out of left field came this ruling that he was going to reexamine the continued viability of the law of the case doctrine that had not been argued or suggested we had no chance to weigh in on that yes i think i think bankruptcy and in any event this is a contract case contract and the initial attack was based upon contract principles of course state law supplies the rule of decision and even in the bankruptcy courts that we're going through bankruptcy without a homestead exemption are the same administrative expenses assessed against the estate yes yes so in other words he's liable for those administ expenses as surcharges as against homestead exemption or is liable form without so my question is now that we can do surcharges against the estate i don't i don't see i don't see how that helps him if i may in your honor of although i think you may be mistaken misunderstanding in my favor but i still feel like i need to correct it he is not personally liable for those expenses the property of the estate is right and if it's exempted then by definition it's not in that bucket of assets that can be used to pay for those administrative expenses so i think it does make a difference to him in theory but lovie siegel didn't it said it's up to the dead or the didn't discretion rests in the vet or in the debt or the debt or maybe claim exemptions he doesn't have to but if he does the court can take them away for reasons not cynical well the debtor has the discretion to claim them or not to claim that is to claim them or to waive them not cleaning them is a decision that rests with the debtor this debtor decided not to claim at first he did then he waived it y so that the house would be used to satisfy his debts and that gold and silver could come back to him and he could take it moved to utah and live out his days with his daughter that's what the evidence is this is not a section five twenty two case five twenty two concerns a it's a preference statute it's a pretty hip it's a waiver of two he does not apply here besides that your honors it was not argued in the district court the five twenty two argument did not appear until after the district court ruled in the trustees favor and mr botha the petition for  hearing raising it and was denied the next day without us responding so that argument is waived and it lacks merit to boot i would be happy to answer any further questions but the fact is that under leroy development that's this court's decision and grace the montana supreme court's decision if a litigant settles a case guessing or surmising or drawing a conclusion about what his odds are for prevailing on a disputed issue settled and the fact that you your guests proved improvident is not a reason to get away from it finally i will say that in norman the decision was premised on this holding that because he consented to these mitigation  contracted thank you cursor did he said well we're going to revaluate whether or not we're going to apply the law of the case through these further motions that were pending before the court of that time while the case has exceptions to it one of the decision is clearl in force one would cause man of what is the law of the case has to do with this because judge curser decided that his prior determination that mr podesta had it in assets and that he was going to approve the stipulation was that well it doesn't this respect this the stipulation was later ron asked that it be rescinded he in fact days afterwards put in another homestead judge cursors put faced at that point in time with a situation well do i deny his his request to the homestead if he did he runs in the face of a violation a law versus legal this is a he can't do that if the debtor claims an asset thousand and nine which allows you to amend your schedules up until the cut the closure of the case under the michael's case that basically says the same thing that a debtor has the right until the closure of the case to amend schedules and head i have no idea what you're talking about what what does any of this have to do with i'm doing your stipulation something you've agreed with the quality you know you can amend the schedule yes of course you can amend the schedule says the discretion really rests with the debtor not with anyone else involved with the case and he already expressed his discretion as just because then he says in the stipulation he also said that he didn't understand the stipulation you have to look to the code itself section five twenty two does not allow you to disallow an exemption just because you had previously said they were going to waive it that you have to look to the specific provide a single civic and different