her tourney through all of the proceeding except the initial bankruptcy filing and i took over very early in the game and made some changes to the paperwork even before that three forty one  this is not a hard case on the facts in my view there is only one fact one position taken that is on wedge with a fact which is really not be a hard case but we merely an opinion because it's never been judicially determined it's not a document in my argument i'll refer to mr till one who is the attorney for the trustee in reference to to one i include the trustee miller in any such statement basically because they are bound to help and the why it has a problem and to the proceeding or what he's talking about but i thought that was nice nice just now that one quote fact that may not be a fact  is the statement by mr till  misled him dragged him around the maypole by the nose in essence and took advantage of him by her sir peter your knowledge and abilities to that i would invite cour attention to the excerpt of record paid to ninety one and i'm going to we the portion this is the resume of mr till i'm in his application to be employed as the attorney for the trustee mr tillable regularly fixed before groups of family law attorney and accountants on bankruptcy law recently he authored it until early two thousand and six prepared annual updates through chapter sixteen ylem is a bankruptcy certified specialist as i am mr tillman writes about family law in the c e b i don't i am however a certified family l specialist as well i was born in michigan and to the extent that that helps that's wonderful i don't i guess i don't i don't want to totally opt your argument but we don't have a lot of time and i have some questions that i want to have answered you know one i mean first off starting it appears the only issue that you raised before the district court was whether the requirements for  i'm not sure that you shouldn't because i'm going to argue on that issue primarily because i think from the facts it is not the legal between the first amendment schedule was filed and when the second amended schedule was filed did miss lou indicate to the trustee that she was considering reasserting a homestead exemption client a i don't know terminations that there was one hundred percent property and what she might have an interest what he did is this all through the case from the beginning on he said rigoberto her husband own this house before they were married he got it with some other relatives originally he thought he still owned it with the other relatives out she first initially claimed she had a thirty percent interest  the prior year then why should we interpret then i guess so that's first and what changed her to make her think that she had no interest in at me  because as a family law attorney i looked at the situation and i deter determined the husband only before they were married i put in the schedules the only interest he might have would be the interest might accumulate to the community if they were getting a divorce and they were not at that time getting a divorce so i felt he had nothing in there he said so right maybe i went i went wrong what i thought amended because of this bankruptcy court order that that caused the amendment to say well now i have a community property interest not what happened was this in the beginning and for a long time  he was hands off it's not mine or to then that the trustee sutil him files a suit against ignores everything ultimately his default is entered and the prayer of the trustees complaint was for an accounting and the court in order that he would that the husband was to give the trustee an accounting and the case was closed about fourteen months later something happened that i never seen i don't know if you've ever seen it on a case where a judge was then you have her appeal times of run everybody is away from it's over as far as the judgment not the enforcement of the judgment what goes back to court and says by the way your honor i'd like you to change the judgment in this case not to something we're i just want you to make the entire property community just change the nature of the asset and that happens of course that happened so what's wrong with my question which was pretty simple it took a long time to get there is there's a court order that now gives one hundred percent community property and i'm missin something you know that's exactly what i want it's what i four minutes that i personally also believe that this isn't complicated but the reason i'm here the reason the involved is it's very scary it's a very scary case what the ninth circuit done twelve hundred cases probably as a consumer lawyer for the last thirty years and when you're sitting with a client looking at the papers one those decisions that have to be made you have to have to list all your property you have to determine what the value is and you have to determine whether it's community property or not so is the gist of what you're trying to be able to sort of go with the flow of rulings have the bankruptcy court and therefore you know when something changes they wouldn't be able to respond to it and when they might have an exemption they wouldn't be able to insert it because it hundred percent interest but didn't exert a homestead and then three years later did would that be a different case well i might if she owned the home and said i don't want exempt car and then later on she said oh it actually i changed my mind i would say that would be it would be more worrisome but here she she actually thr counsel's advice amended early on to say i don't have an interest correct well and i'm not surprised that it doesn't sound to me like it's community property mr frank last time to say he and that you know we  got a lot of these where the debtor or the wife is filing by themselves or a strange now it's hubby's house well a mortgage might have been you used to make the payments maybe some of it's community property and you know you do your best what happened in this case is three years later the court said really the trustees insistence the court said this is community property at that moment it became something that could be exempted say i want to amend my exemptions to take the wild card with which is that wild card is not allowed if you're going to take the homes after one or the other so when she amended to say the i'm going to take the wild card she there is no law because it's pretty clear that under california law at all times there was a community property interest in this property and the issue of course is how to quantify it which is why we filed the action that we did for an accounting so explain to us why you were prejudiced because obviously these things go you know there's that i asked if she had one hundred percent interest in the start and was asserting that and didn't say anything about a homestead until three years later i think but arguably be a different case but since the value of the property was something that was sort of evolving as this bankruptcy and and it sounds like in a certain way i don't know whether it  here's the prejudiced the problem is that based on the way the case progressed had we known that she was going to assert the homestead had we known that she had owned the property hundred percent at the beginning we never would have made a deal with the husband the problem here is the deal that we made with rid of baritone with mr rooster look we made a deal with mr lew of based on the state of the record at the time and the deal was we kind of feel sorry for you i'm sorry that you didn't bother to participate in the adversary action you didn't participate you didn't give us the accounting you left us almost no choice we needed to figure out what the debtor's interest was you didn't give us the evidence you're talking about rigoberto yes i sometimes but the adversary actually yes rigoberto it has nothing to do with m correct you didn't give us the evidence and as a result of your not having give us give us the evidence we're going to go back to the court and get the court to determined that all of it belongs to the community and therefore it's all in the bankruptcy estate so we kind of felt sorry for m now don't you kind of feel sorry for her no i don't and the reason is because half of the proceeds are still available if they're getting a divorce and by the way we didn't know this until very late in the game no one here here's the deal is that what's the you decide you're going to make you have to go into court because we're go bare toes not playing in the pond about the whole bankruptcy so you're kind of out there hanging but you go in and you say the property is one hundred percent community and you ask the court to make that determination or to enter that order right ultimately we did because we couldn't get the information we needed to do it well but that you know that was it that wasn't the only order that could have been and and made it that's the one you wanted so now the property is by court order it's it's one hundred percent community yes and she has an opportunity to amanda at any time correct yes and any time certainly comes when she finds out while on the court told me it's one hundred percent community no problem with that the problem is that what's the problem by not letting us know we then went to really belt you and said ok we're going to give you half of the proceeds so we made a deal with rigoberto to give him half of the proceeds and after we made made but you didn't anticipate that she could based on this make a homestead claim corrupt i'm not so sure that she could have made the homestead claim because she'd already received the alternative exemptions she'd already spent the money that notice of the motion and when was that you want to date it was after the cordon made a determination that was one hundred percent interest well robert's ok so at that point up to then she hasn't done anything to her either mislead you correct but once we make th we make a deal with her so how is there in a stop oh so so basically just to get it straight from the time she files and she amended her papers which her counselors talked about from there up until the time the court says one hundred percent committee property you're not suggesting she she did anything to mislead you or otherwise no i'm not suggesting that although she did at all times assert an interest in the property no matter which sent schedules you look at and there were three or four even in the beginning it was thirty percent and then it was such a community property interest as you know me tell me so now it's one hundred percent community property and what is it that it stops her at this point well what is stops or is the fact that we relied on the fact that she did not claim the homestead we made a deal with rigoberto we got approved by the bankruptcy court did you at that point go back to her i mean what was it was it they permitted to amend correct yes well what we did actually throughout this case and thank you for bringing invested there's twelve thousand dollars worth of debts you yeah why don't we make a deal we'll give you some time to pay off the twelve and the answer was no ok and she doesn't have to settle doesn't have to settle and that's not misleading you in any way it isn't and that at the next stage of it but i but the point is i don't think the trustee has acted on reasonably here because he went back to her and said well yeah that's not the point you might not have acted on reasonably but the question is whether she should be a stopped and i don't see what the prejudice is that she would necessarily have notice of where that she's done anything in the present as i'm having trouble i'm sorry the prejudice is that we entered into the deal with the husband based on the fact that there was no exemption claim and had that point at that point and had there been an exemption claim we would never have made a deal with the ex with the husband instead we would have on her the homestead exemption and they would have gone to file really when he made the deal with the husband you should have talked with her we did we get for notice of the motion  notice of the motion is not the same as making sure there is a waiver of any claim we did not step out in our and affirmatively request a waiver of the homestead that is true that is true i'm not sure if that was all of your other question yeah ok all right so thank you so back to well actually that was pretty much what i would say i agree with this court i actually think this is a pretty narrow case i think the issue in this case is whether or not  unbroken line of cases going back to well i kind of have her after harry but if you argue i'm sort of anticipating that appellant's counsel when they were talking about how you know how you're so qualified how he's so qualified how you all know what you're doing is there and mrs lewis this sort of unsophisticated person that's listening to her lawyer that essentially when you negotiated with reagan barito you did not anticipate at chess move that someone was going to make well and and it would seem that the two of you are certainly more sophisticated than she has and perhaps more sophisticated than we are in terms of so that i don't disagree that this is something that was not anticipated but on the other hand that is a basis in nice or good law which allows us to rely on and not be prejudiced once the parties have acted in reliance upon  because there's not going to be any money half of the money is going to go unless we can reconsider miss lua have exerted it before we would not have made the deal with her husband and that half of the net proceeds would have or anything above the homestead which is one hundred thousand twenty five thousand dollars i could be on her hundred thousand dollar home sat in the amount that he got is money that that's an otherwise go to other creditors correct and it's not me that's what you're complaining about that's that's correct so if let's say we agree that equitable a stop will is available ok give and be application of a state exemption and then state law as to how you play that out within the federal bankruptcy yes then of course we have to work through the whether the court had made an error and how it applied that correct that's correct and i think that you get the bankruptcy judge laid out an incredibly clear and full thank you very much ron is first and foremost thank you for the permission to participate in oral argument today the issues that were actually before the district court and also the bankruptcy court really are not something that probably would have prompted in the meekest brief on either side i think but of course when the debtor filed its appeal to this court and then added a bunch of issues that were not in fact decided or even argued to the district court that's when the n a c v a came in and filed it's an immediate relief and frankly if it wasn't for the know to be honest with you we're not sure that any of these issues are before you  you know that the judicial you know officer of the court kind of part of me says this is what you should do you should acknowledge that below the legal issue of whether or not judicial equitable stoppel actually applies in these circumstances was not litigated that issue has been the way in that the only question that you're dealing with here today is whether or not the elements of equitable stoppel were properly applied by the bankruptcy court to these facts that's a clear or determination in terms of  factual findings that is i think probably what the court should do i would appreciate it if if you do that i would appreciate it in your opinion if you would kind of throw in the caviar's that you are not deciding x y and in the other issues decided argued by the parties including for example whether the debtor has an unfettered right to amend the exemptions with which we disagree and frankly with respect to it's the bankruptcy court rule in favor of the debtor in this case because court allowed the debtor to their exemptions even though i'm not sure that was entirely correct but the trustee isn't challenge that so there's definitely not before you and the other issues raised by any c v a as well as by the debtor above and beyond the question of the factual those aren't really before you in the in my in my view now if you would like to go into the kind of the higher legal issues i'm happy to discuss them we've i think we've done so i don't want to sort certainly i don't want  suggest we're not always interested in higher legal issues but it does seem the party's pleadings have narrowed to scope well in frankly mr fink statement today i think even clarifies that where he made the point behalf not of the issue of whether equitable stoppel is actually available under these circumstances and it's unclear to me whether that was an argument there is raised below it's unclear to me whether or not you kind of lump that with the other extraneous issues or whether you think that's one that's actually been properly  decision of course i'm reading the briefs list into the queue but i think lawyers to see it was absolutely clear that the scope of an exemption claimed under state law is determined by the state law that's been consistent with the erie doct correct and so lover siegel tells us i think quite definitively that defenses substituted defenses under state law such as acquittal stoppel in california are available in determining in the context of homestead exemption claims so i think it's clear california does so that as a matter of substantive law california does allow it will stop all the stand as a defense and what concerned my constituency when the briefs started coming out was this idea where which which we've seen not only in this brief but also in other cases that have come out since law versus siegel the kind of advocate for this idea that  you have again i appreciate the opportunity to present to you today thank you thank you you have about a minute and a half left  documents it sends the press he will take the property and sell it to control the real estate agent picking and everything else they will pay a certain expenses they will give rigoberto half of the sale money which comes out to be about one hundred twenty because there were two hundred forty in all that they received to pay the ninety eight hundred dollars worth of debt and anything that's left over goes back to you rigoberto this little off he doesn't get anything we saw that we did not object to it because we still believe that it had been basically his property for some reason about fourteen months after the deal after the judgment was entered and at a time one which we made a deal to sell it and give him half the money and give him the money back if we don't use up your honor let's change the judgment not enforce  not necessarily crediting your characterization however but we will take this under submission and i think all counsel and also the a mickey for your arguments this morning lua versus miller is submitted i will asked do we get to have an explanation on the tie your choice but it just kind of left me with some curiosity that has nothing to do with the case yes