good morning honors and i apologize if you can't hear me i've got a tremendous cold but i will do my best i gather as you stated you've read all of the issues that are present in this case and this is an issue of family law intersecting with bankruptcy and the issues that arise when we're trying some property and make sure that it's done in a fair manner knowing that the bankruptcy court does have jurisdiction to make those decisions having entered into many of them myself as a practicing attorney and other cases but the issue of concern here is that the sale of this particular piece of property which was the prior family residence of both of these parties both the debtor around the non debtor spouse from all appearances and from the values that were provided and the information that was provided to the court in writing by the trustee does not indicate that the entire community property value was taken into account which is what the trustee is required to do is to look at the entire value of the community property asset because when the bankruptcy estate is established these parties were married at the time that the debtor failed so therefore the entire community property value it's like a big pot and you dump the entire works in businesses properties houses cars animals you name it goes into this so your argument is that after paying the first trust deed the a state would have taken one hundred percent of the profit press it's not fifty percent of the estate should have taken one hundred percent of the proceeds and then allocated to husband what his portion is and then the portion where you wife the problem was in this case that the first trust deed was not five hundred sixty two thousand it actually was only  recall and my mind is not there it was in the neighborhood of about three hundred forty to four hundred thousand dollars and where is the evidence of that in the record the evidence of that in the record was on her schedule schedules did not schedule it at three hundred thousand dollars or schedule schedule but i think it four hundred something it may have been four hundred thirty thousand nine hundred ninety i think but i'd have to go back and look but i'm pretty sure she scheduled at it it wasn't the five sixty number is kind of a phantom number and this thing night out of her rectum that is the number that was used which is not the correct number because that was the number of the original note of which this original note is actually a line of credit where was that when you said that was what do you mean what i mean by that was used as that is the number that the trustee originally put in the valuation when they submitted how they were going to calculate the number that husband needed to pay to the estate to purchase out what i'm trying to figure out is the communities interest in this home that is where the water seemed to be very muddied in that the original note way back when these parties purchased this home was five hundred sixty two thousand but that got paid down during the marriage but it because it was a revolving line of credit it went back up then it went down and at the data separation was a completely different number and then it was the number set forth on a schedule which i have memory serves me correct and your cards are it's one hundred thirty thousand that is the number from which the trustee should have then use that as being allocated to husband as his separate debt we also have the issue of the liens against him why is that his separate the other issue in this case and that brings me to that point is that these parties purchased his home jointly during the marriage it was not a property that has been owned prior to them and that is  the record that it was that he brought and into this state but in the final analysis the trustees analysis doesn't recognizes that there might be litigation in connection with this property but doesn't appear  spot bad question so let me rephrase the question you're arguing i think that the trustee in correctly in his negotiation assumed that a separate property interest rather than a fully community property interest and having read the record i see the trustee assuming there would be litigation but i don't see him necessarily putting a dollar value on on that litigation based on a mistaken assumption that the property was the husband separate property that's correct on ok and so now that is an issue i believe that the bankruptcy court needs to resolve prior to actually we need the bankruptcy court because this is a core issue there needs to be a determination as to what is separate property versus what is community property and then what is husband's buyout of that and the reason that i make that statement is once there is a finding in the bankruptcy court as to what was husband's community property or what his portion was out that's now raising the card as to the family law issue and because i'm handling both sides of this case now i can't go back to the state court and say well bankruptcy court got it wrong and husband paid this amount but he should have really done this i'm now at it i now obligated to do this with mathematical persuasion i mean isn't that doesn't the court have enormous discretion they had in looking at all the factors including the the difficulty of getting this gentleman off the property which i think you will concede appear  record seems to indicate he's not going to leave happily which is going to complicate a sale is probably not going to happily allow the property to be shown so there's all sorts of intangible things doesn't the trustee get to take those into account in terms of his business decision and doesn't the judge get to take this into account his decision whether it's in the best interest of the estate to do it well your honor first of all we're looking at the difference between four hundred thirty thousand and five hundred sixty two thousand so that's a huge difference in between but what's owed now is the four hundred thirty thousand which is going to be allocated to husband for him to now continue to pay but there's the difference in between that should have not been factored into that it should have been the four hundred thirty thousand from the seven hundred sixty five thousand so therefore well here several of the property was seven hundred sixty five thousand that's what the parties agreed to that then that there wasn't right there was a broker's price opinion at seven hundred book but but also the comment that to get that was going to be extremely difficult because he you can argue that this what this gentleman was going to be cooperative with the trustee i think he would have been based on what i have learned and i've been in this case and i actually have is there anything in the record that indicates that because the record strongly indicates the belief on the part of the broker who did the brokers price opinion the trustee and frankly the things that your client said as she had a restraining order against him didn't she she had a restraining order against him and doesn't he have guns access to guns isn't a gun shop out there there was the gun shop has been closed and we have no idea what day are and that's another whole issue but i good for the for the well that's not my point is that the court and the trustee had knowledge that there was a gentleman out there who was subject to domestic violence restraining order who had a veterinary practice and a gun shop on the property who didn't cooperate with the with the broker and the broker saying i don't think he's going to be you know he's showing me all the bad bits of the property that's in the record there was not a gun shop on the property i thought that was he owned it was someplace else the gun shop was downtown ok but he owned a gun shop and now we don't know where the guns are and the guns that in fact were on the property were removed by the debtor when she took possession of the property so there were no guns on the property that anybody was aware of at that time but it comes down to again that there are simply because there still has to be an allocation for what her interest was in the property and one hundred percent of the community value should have been put into the pot and then reallocated accordingly back to husband and then the other portion to wife and had a clean division that did not happen what why was that required i thought judge carroll was very clear that he was approving a sale for whatever interests there was that was whole point of this is that the trustee got to avoid this so i don't understand why you believe this is raised judicata because i understand that the bankruptcy court was clear that it was signed whatever and that that may be that seems to be left for the state court in the divorce to determine that's not the reading that i view the record as saying is that this is a final determination as to what husband is paying into it and what if what he's buying subject to any other determination other than what the bankruptcy court has now determined to be that final finding i'm not sure that i don't think that was judge carroll's given his last comments on the bench that he was approving the sale whatever the estate had i don't  so the first thing i heard miss him say it was the jurisdiction wasn't really disputed which of course it can't be any good faith but if you look at the transcript judge carol and it wasn't ms him then it was mr wynn who was then representing the debtor said so mr rayney the only thing you're contesting is jurisdictional right and mr amy said right that's the only thing i'm sure so i think that that's the only issue this court could hear this little could hear there was a motion pending to strike document that was filed and yes he said that there was no ruling on that so isn't the we're on the record did he strike the document that had other arguments in it i don't believe he did strike and i did make a motion because i if it's fingernails on a chalkboard to me when people file things later hey right and so i filed a little motion just to sort of express to the court my annoyance with it but the court did not honor that didn't strike the pleading but i think that when counsel stands at the podium and says the only issue before you is jurisdiction i believe that they're entitled to represent their client make that representation so i think that really all we have is jurisdiction in there really isn't any possible good faith argument that the bankruptcy court doesn't have jurisdiction to determine what property of the estate is to determine that the property can be sold to determine a fair sales price for the property and to compromise a compromise a controversy between the estate and another party i would think that really anybody can argue that i don't think ms him did agree so i that that's really now of course you know we do want to talk about value i think there's been a big misconception here by the debtor which has kind of wind mcclenney had a couple of arguments on why he had a separate property interests and one of them was that i think he owned the property before marriage i think that he had an argument about that way and then he also had an argument the the dissolution was had been going on for quite some time but that how we got to the sale of the he had been the property by himself for a year year and a half and like that during that entire period of time he made all the payments so under california dissolution law there's going to be offsetting things the community gets an interest from him for his fair use of the property and he gets a credit from the community for the fact that he's making the payments on the property that might come up plus it might come out minus of course his allegation his contention was that it gave him a separate property interest and that's one of the things we resolved through the compromise but we're talking about a marginal amount of money that was his in terms of his separate property interest now it was frankly enough and it's an unfortunate thing the trustees perspective but it his allegation that he had a separate property interest makes it difficult for other bi to come you know does another bidder want to come and buy a ninety six percent or ninety eight percent of a piece of property with dr mcclenney is a dangerous person i think the debtor says this all the time you have the declaration of the trust the about what happened with her broker when he went there he he's a dangerous person the court has some questions about guns and i'm a little unclear about exactly what's in the record though there are a lot of pleadings that are before you record what is in the record of course is the fact that he was uncooperative that he stressed all the negatives of the property when the broker went there it's frustrating to a trustee to allow someone who's in the property to get a benefit out of their own uncooperativeness but that's the reality of being a trustee invent currency so the number by the way on the on the trust deed but it was before the court and it's in the if in both in my brief and in the trustees declaration which is docket ninety six i'm not sure which transcript number that is but it's the motion to sell the second one and it was four hundred nine thousand and eighteen dollars that's what was owed on the first as of the yes and the whole so so that's about what was owed so we go from four ten or four thirty anyway you want to look at it two plus the one thirty he paid gets us into the mid fives and then we have a completely you know no broker's fee no no no escrow nothing like in the way guess we did pay in escrow but i think dr mclean paid for it all we didn't pay anything towards out and that's around figure fifty thousand dollars of value to the estate i don't i don't know if we actually had evidence of that but judge carroll's been on the bench for i don't know twenty years i don't your experience judges i'm sure you all know roughly what you know what sales costs in an area are and i gets us into close to six hundred thousand or if not the value the value issues testimony that we had was we had the debtor schedules which said six fifty we had the trustees broker who said well we might get seven but there are problems and then we had a declaration from the debtor which i believe she was judicially a stop to make single seven fifty and and i mean i suppose as a part of owner of the property she might be she might have the ability to make a statement on value but the judge isn't required to accept that so ok so maybe we didn't get on hundred percent of fair market value but we're in the range and as a trustee let's face it you don't get top dollar everybody knows you're in trouble you've got problems and plus we had this whole issue with the hostile occupant where our choices were to really get the best price for the property we had to get him out which means i guess i start with a turnover complaint in the bankruptcy court both on the premises there's a number of buildings so i mean it's a again it's too bad that he got the benefit of his own lack of cooperation both threatened and perceived but that's that's the world we live in and we were able to get a reasonable price for the property based on all the on all the different things that were there and that's what the judge found that that the trustees discretion was adequate in that this is a reasonable price and i think the judge kara was certainly affected by the lack of bidders we had to sail hearings the first one got continued because i know the judge in is it is oral findings so he didn't think the evidence was sufficient my memory is in the march hearing that he thought that i had sufficiently raised the fact we're compromising controversies in my notice and so i really noticed it but they did if that's that's a that's a grace note but we did come back with more evidence as well and so we had to sail hearings we had no better either one we actually got the the doctor mcclenney to raise his offer by thirty thousand dollars at the time and and so that was you know to the benefit of the estate  let me ask you about the compromise yes and the documents that it seems to me you were merely compromising claims against the property issues relevant to this you're selling him whatever the estate has in this property that you're not compromising her claims in the family court absolutely not so to the extent she has substantial claims in the family court she can go in and presumably get the family court to give her the entire property what yeah well of course because now it's his i mean but goes to the superior court says hey he got four hundred nine thousand dollars of his separate property paid by our community property i think that the superior court still got jurisdiction to compensate her for that i don't think we resolved that the other thing we didn't resolve it's a complicated thing when you have these marital cases because if we got this money and now we've got a pool of community property and yet we've got two sorts of i've seen them held to be community debts in certain circumstances so there would have been a whole confusing thing about what has to happen with the community property and what pool does it go into and we resolved that with dr mcclenney as what you want to do is to monetize the advantages this this arrangement both of that we have a sale we've created a a fund of money based on a piece of property in deciding whether the compensation was reasonable and adequate you want us to mon paramount interest to creditors and we had a situation with with this sale that we were in a position to pay all claims against the estate one hundred cents on the dollar of course that's become more complicated because now we've got additional administrative costs we're we're still going to be able to pay all claims in full it's just become harder and and so that's the paramount interest the creditors right there i mean i believe that the trustee has has to take the interests of the the debtors residual interest as well we don't throw that in the trash but it's the paramount interest the creditors are more important so that's that's those are the things we were looking at that's what we're that's what we're doing and that's maybe a well she's paying that and i go well if we pay it she doesn't have to i don't see where that's a harm to even have to if that necessarily something that was decided in connection with the issues before us it seems to me it's not it's not a dead there's a lot of stuff in bankruptcy court but if you look at the transcript mr rayney said well gosh your honor i have you waive the fourteen days and judge carroll said yes and he said well i might want to make a motion for stay and judge carroll said well you can you know how to file it and then the that was closing the barn door after the horse was gone and the law says it's got to be either fraud collusion or attempt to unfairly prejudice in the self against other bidders and i don't think there's been any showing of any of those things so there weren't any other bit thank you very much i just want to touch on the issue that counsel raised on the issue means by out there in lies the the bigger crux of the issue from my perspective in looking at this there were liens against this property for child support spousal support attorney's fees out of d v t r o actions those lanes from what i can look at from the record and from what i'm seeing in the statements those liens were not bought out there's a meaning there's no on the property right well that's the problem in that those liens are actually property of the estate because those were preposition debts that were scheduled estate they should have been paid into the estate so that they could be dispersed because anything post petition liens yes those are going to right with the property and if that doesn't change anything right i mean those liens bought out the community portion of the property because those wings are property of the estate why have you got the same time that might have to pay the liens and buy the crowther other interest the property at the same time because now you're leaving the debtor to not only have to additional tourney's fees to go back to the family court and i can tell you how very difficult it is to try to sell property to get child support spousal support paid it is extremely time consuming it is very involved ime i already know i've had to do this in cases we're looking at thousands and thousands of dollars to get property sold to the right or the shooting you want the trustee to do that for the debtors benefit at the expens it would be bringing money into the estate that then could pay her separate property desa that husband doesn't have an argument that any of the money would pay the separate property debt potentially going towards her student loans it looks like we already have enough money in the estate after the sale to pay the probably is what i understand but husband did not waive that right and i have not seen that in the document so that's where i'm a little concerned because on both of the sale of the properties husband still saving his right to be able to deal with those separate property payments and the family law court in which then leaves again those liens against a piece of property that now husband has possession of that quite frankly i don't see how family law courts going to sell it well  is not designed to be a marital dissolution alternative and there are certain issues that routinely go to the family look what's in there well equipped to handle them so i don't know why liquidating the property and paying creditors in the estate which the trustee is charged with doing when she did that and i don't understand she is also a creditor in part because she is owed money from these liens that are against a property that is now being purchased back my husband and she is a creditor in those subsidies and that he has to protect for her this should not have discretion to decide the order of liquidation of th sorry repeat as the trustee not have discretion as to the order of liquidation of the us so yes the trustee does and having liquidated assets sufficient to resolve the bankruptcy issues is she obligated to or even have jurisdiction to do other other take other acts part of that liquidation would involve the debtor who is actually a creditor two of her ex husband trustee is also obligated to cover for her as the creditor and the reason i know this i've had to do it in another case and we ended up with a ruling that in fact because my client held a lien against the husband's business the husband not only had to buy out the community he had to buy out the lien of my client who was the debtor because she was actually the creditor of the husband as the liens against the business so there's no doubt he had a duty to cover for both i don't i don't know that case no big perfect sense to me if that were doing both of those things selling the business and forcing millions were necessary to pay creditors it wouldn't make so much sense to me if doing one or the other of those were