and i'm here on behalf of the rest financial corporation in the appeal of two matters from the bankruptcy court one is a judgment against arrest in an adversary proceeding for approximately four hundred  twenty five thousand dollars for damages allegedly incurred as a result of the violation of the automatic state that's what the judge and says in fact it's based on a finding of contempt and the whole problem in this case is that it appears from reviewing the transcripts of what occurred below the matter was treated as if it were a complaint for to have a just under three sixty two k when in fact it was a contempt proceeding and it makes a huge huge difference in the outcome let's let's walk through that really fast to find contempt we're going to have to find that there was a definite and clear order of a court right potentially some confusion between an order the granted relief from stay and some prior occurrences right yes your honor ok and then the next question just to get them all out the next question is what if we're in a contempt mode was center financials bankruptcy here i'm sorry when the preserved bankruptcy case was converted to right or seven right there was an order entered in the conversion order that granted point center financial relief from stay right  deed of trust was originally against i think about a thirty hundred acres of property the no drugs provided for reconvenes if certain conditions partial rican vance's if certain conditions are no i understand that the argument was that wasn't done properly right the reason vance ok but what you're looking at here's what i'm trying to figure out where the subjective good faith belief would come from you've got an order the johnny says you have relief from stay in those orders typically wouldn't say anything more right because it's not that it's not you would be entitled to think it's not the bankruptcy courts job at that point to say what that means on a state law basis right but in the meantime in some ways look the title report and there have been some rican vance's right record all right and at the same time pretty much the same time a let rest which if we could put it in context exactly what russia's role here is the benefit that is what is stupefying about this isn't even their money no this is what stupefying why they could have done so mechanically what they did makes no a quick answer what every one of those cases about subjective good faith believe ultimately relies on is something that is either within the knowledge of the particular of the alleged would violate or contempt or right or some other action that somebody else takes that confuses them in some fashion or some when you go all the way back to dire the question of whether somebody who's not experienced a bankruptcy would know the three sixty two age says what it says how do you not saying they didn't violate state ok i'm saying it's not contemptuous ok if he doesn't meet the standards for going down and so well i'm sorry go ahead of matter of wall well we'll get to that but but on this particular issue which is what she started with state of mind it appears that she from the transcript that she at one point says it has to be reasonable which would be inconsistent with pointed out at other points however she talks about bad faith in the kind of things that would bring it with integrity i get a lot of that your honor if you look at it seems to be addressed the fact that rest was defending itself in the we don't want any money of sanctions imposed against us and rest repeatedly said rest file the declaration of non monetary status which the trustee objected to and it was stricken rest was ordered to file a response  filed ok rest first learned of the bankruptcy court ruling valuing the elavil of the debtor indicating that it only consisted of six hundred thirty six acres when it was served with a complaint and it's under though he was not but the n f l your honor which is one of the other defendants in this case has never taken the position that they didn't have the right to do what they did and in fact the very first argument always danced by the defendants including recess was that the rican vance's issued by the court judge bluebonnet were invalid and that as a result the thirteen and thirty one weekers should be always thirty one hundred thirty one acres that six hundred thirty six there whatever that's right but but aren't there i mean don't you get out of the transcript a couple of problems with burdens i mean didn't she i mean she said more than one thing with respect to the knowledge requirement but didn't she say i don't think that requires clear and convincing evidence and wouldn't that be a mistake no i respectfully judge move on i've appeared in front of her number of occasions she's a very crude interest but she also she goes through a thought her open thought process is on the bench it's ok actually allows litigants multiple times to persuade her her mind is not fixed and so there are comments are reflected in the record as i understand where she's she's she's wrestling with the factual disputes that are being raised by the the lawyers but where did she ever say clear and convincing evidence is the required standard and i'm making my determinations under a clear and convincing evidence standard and i mean this transcript and i agree and i have a tendency to do the same thing on the bench so i applaud her but i can't and that finding doesn't mean it's not there but i can't find that there are the i was one of the workers that was arguing in front of judge bluebonnet the trial court level your honor she clearly at the demonstrated she did not agree that there had to be a mens r a an intentional thing but she concluded that there was clear and convincing evidence of not only a violation of the state but that where did she say that she said that in the in the transcript we have because she said seven twenty eight when she's discussing exactly what it is that mr beazley does i don't know she uses the words clear and convincing itself but that but the court was aware of the of at the time that they were hired that there were there was property that had already been reconvene aid pursuant to the trustee sale guarantees yeah the argument showing up there anyway  eighty that so as to the court knew at the time of the trial that here we are not only have one and two letters before they in the essentially but the notice of trustees but we have this title that clearly says a later point well i'm going to apply a slightly higher burden with respect to the knowledge requirement because the order itself might not have told you everything you needed to know but what i don't hear and i don't think my colleagues have either is watch the punch line where does she make a finding saying under something like clear and convincing evidence i find there was knowledge and everything else i would need to find to find contempt i don't have the exact will there was a very detailed when we submitted pre trial factual findings and conclusions of law both parties did that was part of that i don't have a i don't have a day off the top of my head a citation to the exact record but as the court notes but part of our factual determination is that the court made at the trial court level and the conclusions of law that she reached there were extremely detailed in connection with what mr beazley knew about prior to  or undisputed is that rhys violated the automatic stay they were on knowledge they were on notice of not only just innuendo or arguments of  partisan counsel they could have looked this was a self appointed self admitted expert in the area of judicial foreclosures in the bankruptcy context so this is not an innocent party they didn't know what was going on but that because i think and the reason i keep saying i don't think stay violations are at issue is i don't think that's really the there are multiple things that have to be determined here and the bare bones fact of there being a stay violation i think she found  proceed they they i respectfully disagree with my colleague who argued that essentially they waive the white flag immediately they file their own cross motion for partial summary education and one of the very first arguments that trial dispositive motions motions in limine the trial brief even at the time of the adversary perceiving when you read the record and the testimony of mr beazley he is attempting to justify emanated from an action to obtain injunctive relief to prevent something that was a violation of the stay everything that came there after necessarily as part of the same action and is there by compensable let me give you a hypothetical what if instead of the trustee filing an action what if reese would have come in and said look we think there's some uncertainty here we're going to follow that relief action and what if the same issues would have been litigated in the as they would have entirely different but i'm asking me so what is it that what is it that gives you the right to the fees is it the issue or is it the way it came up it's the way that it came up and it's the positions of the parties that they were advancing throughout the course of conduct  declaratory judgment on the legal issues they defended and i'm sure my colleagues question concern about don't they have a right to defend if you could sanction him you could have given a nine thousand and eleven safe harbor notice and if there was a of damages and the the point that there was a legal issue here it had to be decided that the did they simply have to say because of the automatic stay we can take no legal we can't defend we have no legal position we can take well with all due respect that's the position that they took prior to the filing of wasit so in other words the trustees actions were in direct correlation to and their position apologized and then you filed the lawsuit and sure that that that's the question is are we going to the american rule like it or not is what it is you initiated litigation to resolve a legal issue you've shifted the fees to them the only way to do that is as a state violation and i'm just having some trouble people like that works because the courts say if if your argument is that the trauma trial reese wanted to have it both ways one they wanted to say hey purposes anyway but there's an argument that this is this really is just so meritless that i'm going to you know impose fees for that i mean it's sort of confusing rule eleven in contempt in some ways in my view and that's i'm problem having a hard time forgot what the standard ought to be under the circumstances actually the trustees position that it's not merrill is the trustees position is this product this piece of property was it was worth at the time of the bankruptcy filing over one hundred million dollars no no what i'm suggesting is when judge blue month said is the defense of reese was without any merit because she had entered an order years ago yes and the obligation would have been to attack that timely that that not having been done there really is no legal attack on that it's it is what it is us multiple bites at the apple and i know we've we've talked about we've already discussed this but there were numerous opportunities for them to go this way they chose the path that they wanted to go because it was beneficial one of your honor's asked the question well why would receive essentially do this the the reality the honest answer to that is research was in bed financially speaking with both p c f and the n f l they were professional trust the handling the lots of transactions for this particular defendant it wasn't a bon made there was not in the trustees position or the court's position a reasonable good faith belief they didn't have i didn't have to be i understand but that's one of their that's one of their arguments your honour's that that they of law that were very detail these were in fact the pardons including reste submitted those to the court for her consideration so those are stipulated as i see my time is up thank you one of them jumped out at me at page twenty eight when judge louis bond is talking about the letter that mr broker sent to rest in december after about two weeks after the notice move on says so it seems to me here that although mr brokers letter doesn't tell him about the court's orders what it doesn't say unambiguously is there is no automatic stay still here and i think when you get a letter like this if you don't then pursue an investigation and look at the docket that you're proceeding at your peril and that you cannot simply say he told me it was ok that your honor is one hundred percent contrary goes to its principal says hey we got this letter from occurring p c s has been around for years and so is n f l and n f l did not vigorously defend if you look at the docket you'll see they dropped out after points in our financial file bankruptcy and the case was converted to  honest it probably was a subdivision map back issue and certainly probably the rican vance's probably had some and probably both sides have some huge problems with that property now because if you don't have legal parcels and you're going to sell them you can't refinance them there's all sorts of things but your client clients principal was asking just we've got a problem let's just exercise some self help they didn't use the right procedures you know this so they went on the whole notion of there wasn't a subdivision map back to issue that in my opinion it was i didn't try it but that just made everything go proof that was an automatic some you needed some judicial action but you and that's a problem for your client i slash order went out a few days ago and the question is although i think review of the record indicates that the slander title issues work argued and judge bluebonnet i believe did make findings and come to a conclusion we don't brought that to your folks attention i'm assuming that the thing to do and we should limit agreement with the order would be to have josh move on to what would be necessary to correct that condition and then then it and then this can be under submission