order if you make that pitch to the bankruptcy court that what we what we argued was we believed that we weren't sure but we believed that  the that the district judge had been mandated for further proceedings meaning additional fact finding and you press that point pretty hard to ensure you said we're entitled to a hearing this is an open order it's not  not final give us additional hearing we did argue that and we lost that and frankly having it and frankly the reason we appealed it was because we think we had a choice well so yeah so i guess i'm having a little bit of difficulty what's different other than the fact the chill last how is it the case that it wasn't final when you were arguing before the bankruptcy judge and now you're asserting that is why are in other words there's going to be a time when there is a final order right when all parties and all issues involved in the adversary case are dealt with by the by the bankruptcy court and then presumably an appeal can be taken to the district court then the adversary proceeding involved anybody other than the chapter seven trust the it did and that and that was that was finished up a couple of years ago and went so so this proceeding as it involved the chapter eleven trust and others that i was gone couple years ago yeah that was done and and the court found that there was no bribery or anything like that and an issue gets its ruling  n what happened in this case was that a motion was filed for sanctions after dismissed after dismissal of my farm and my client and that was granted and then this appeal was paying to the district court sure we understand that i guess i'm trying to figure out what the state of play is and they be the easiest way for me to asset is is there another scenario is there a way for you to appeal this order it was done we had to appeal couldn't you couldn't have taken an appeal well if the rest of the adversary proceeding was concluded you could have appealed that then to the to the district court well but but that was done and did like in two thousand and ten and then there was no feel taken and then two years later or three years later the district court decided the appeal of the sanctions or so that was all that was alive that was all th filed but that was done in two thousand and ten and no want to appeal that and it was a final what will we what was appealed earlier that before judge fitzgerald decided that was the sanctions order that wasn't decided by the district court so very recently like in two thousand and thirteen i believe i'm sorry the years go by but as it was in two thousand and thirteen that was all that was left in the case at that point so the issue was which of florida what was she to do on the case law was clear that if it's just a ministerial act we did argue churchgoing you're correct that we thought a different fact finding should be done however the fact the matter is that we didn't have a choice because if we didn't feel that what our right up to th could come up here and be decided and we also believe it's final we do think under the case law sufficiently sign a little used to this is a as a prophylactic appeal but you did not appeal at the conclusion of the adversary adversary proceedings completed its dismissed and concluded us all party and then the district court rules on the appeal on the sanctions motion years later and then vacates around at least the words in the in the order are vacate and remain and but if you look at the opinion the so we believe that that it was final and that the issue should be heard and the issue is you know whether or not the judge and the district judge was incorrect that an adversary proceeding can multiply proceedings of bad faith in the one hundred twenty seven if you read that statute in perry material with thirteen thirty four of the jurisdictional enabling statute we believe you can only conclude that proceedings such as an adversarial proceeding can what makes the bankruptcy court sanctions were a final one when it did not resolve all issues as to all parties what made that an order that you could have a properly appeal to the district court when you appealed it and we didn't  we've said in fact on more than one occasion that when it comes to an adversary proceedings we take the more traditional or more stringent view haven't we i that very well may which which raises the question i'm trying to get at with and that is if the district court was wrong to address it if the district courts if the if what the district court should have done was to say listen this isn't a final  you can appeal this and it wrongly took jurisdiction does that mean we can take jurisdiction well then then i think the district court order has to be reversed at that at this point because it would be sort given that really was a motion that started this whole thing and for procedural reasons made into a adversary proceeding because the motion itself has been considered to to multiply the bankruptcy proceeding which well it could have it could have except the only problem there is that it was filed in that district court judge and i think the case law is that you have to file it can only most proceedings in the court your  stay there is the fact that counsel sent the sent this did a press release in order to embarrass counsel in the trustees there's also judge fitzgerald's finding at the hearing on the sanctions where she said in fact she said that the court has been delayed in getting to the merits because the subsidiary litigation which has little merit that's in this up my appendix i want to nine so the bankruptcy court found that similar to judge walls that there was a deluge of litigation a deluge of subsidiary of education and therefore based on that she can hundred twenty seven sanctions motion since part of what is being sought here is the power of the court to write wrong what's your response to their assertion that you guys are really in the wrong you you've led him to believe that if they took certain x they wouldn't face this motion at all and now they are right but but but what we always did in that letter was we just simply said the rule is that you have twenty one days safe harbor that's what the rule says if you file on that then we can file that there's a safe harbor provision there's nothing though that prevented us nor did we say in any way that we wouldn't seek additional sanctions and remember what happened here what happened here was that the fox rothchild my law firm was dismissed before was was in voluntarily dismissed by the bankruptcy court wasn't voluntarily dismissed the trustee was voluntarily dismissed but if you look at the record only after the banks the court said on the prior hearing i don't find anything here as the trustee i'm going to give you one more shot will we do this hearing and you know and i've got to get to the eighteenth and then on the stelzer which took literally took two years to get in the first place and during that deposition in looking around the room it was astonishing to me i was the questioning attorney who was paying for all of these lawyers offices and so on so i asked the question where will we well familiar with the facts and we're also familiar with the district court excuse me the bankruptcy courts several remarks  and indeed what appears to be your acknowledgment that there are some no basis for asserting that the trustee and fox rothschild were part of some alleged scheme for bribery that being the case how is it that that the you're in a position of arguing to us that the district court that there was no the district court was correct to say there was no basis in the record for upholding the sanctions were the there's a little twist in the way the words are construed your honor what we agree we did not assert that fox rothschild or mr carroll jep a seven trustee had directly participated in attempting to bribe as we characterized it mr stelzer our concerns with this with the chapter seven trustee was specifically the misrepresentation on the record of ms katz the fact that that had taken care of pretty early in that in that process once it was pointed out that there had been there and and yet there were motions to stay that was the conflicts there was a formal correction on the record but you have sworn testimony from the witness and self of said the the lawyer katz made a comment about a never met before and then he testifies we had dinner together you had sworn evidence from a witness as opposed to a representation that justify this barrage of filing well here's why because immediately even though judge fitzgerald the bankruptcy judge acknowledged on the record during the deposition that at a minimum we have stablished question of credit credible within the next week the next week she granted partial summary judgment based solely on mr stiles or steps to moni and she also ordered in that summary just partial summary judgment that we didn't we were precluded from challenging the basis for her findings in the summary judgment now how is that relevant to the question that we're struggling with here which isn't i've taken us pastor stiction we're probably going to get back to that but assuming we're pastors stiction how does how she handled mr stelzer scrat ability issue relevant to the question of whether you had a basis a good faith basis for asserting the things you asserted about this about mr carroll and fox rothschild being involved in some bribery scheme involving mr selzer that's the took that's what's going on they could have our concern at the time was that there's a statutory and professional duty but this is statutory duty for the trustee and there's a there's a professional duty for trustees counsel when there are questions of potential illegal acts to make a reference to raise those issues it's an affirmative duty instead of doing something about it they took advantage by their silence by doing nothing of that summary judgment so we are now confronted with what's going on here who are the real players so we  didn't make act we we strike to be very careful i thought we were very careful in simply laying out the facts in our motion in saying we said we believe these raise serious questions and we are asking the court to conduct an eviden and you reconcile that those acts with the press release out of that how does that further your obligation for an inquiry in the court or the press release we were confronted with a number of inquiries and we responded to the press there was a lot going on this was a high up as a high profile case especially down in this jurisdiction there have been a number of very heated ever series there have been a number of which we've prevailed and we we've not just lost everything we've actually through our efforts won reversals and so on that might be the case but let's get to the point how how does going to the press with accusations of bribery to describe them we believe that everything we said was accurate if we still believe that what we've said is accurate as a matter of fact if you go through accurate to have accused the chapter seven trustee and fox rothschild of participating in a scheme to bribe well i don't know that that's an affair characterization that's that's what you said in your papers and then you accuse them of being participants scheme to bryony did it not once you did it multiple times and different motions did you not include on an appeal to this court no no no what we said in our motion with regard to the chapter seven trustee and counsel i very specific we said there was a misstatement on the record by ms katz there was a taking a participation in the benefit of the tainted testimony without action which we believe implicates the chapter seven when someone accepts the benefits of something especially when they have an affirmative duty to act to at least make inquiry which is all we were doing we asked the court to make inquiry and the district court agreed the problem they had with their position in this case is everything we've asked for has been granted their sanction their asking us to be sanctioned we filed the motion it was granted how can that be sanctionable what motion you're talking at the motion to  from the tree at sorry i'm aware that become aware of it but what about the con what about the motion for conflicts what about the objections to the the petition what about the fact all this is going on like a three day period just just about two weeks after this deposition testimony we were could to make a phone call i mean that's of the bankruptcy courts and pick up and move on and with all due respect to the bankruptcy court the sharp practice referred to by the panel in sending the to the rule eleven letter demonstrates this is there was no getting something done by way of phone call it was only after we filed the motion for evidentiary hearing in the district court and then that was brought up if the omnibus ok they have the chapter seven had plenty of time to make the correction on the record but they had didn't do it until after we pressed the issue but you also had the witness testify that there was that he had met the person before you have evidence in the record contrary to the representation before the fight made all these filings and i don't understand why you didn't at least take it take note of that the witness unself under oath said yes i met the person before that was the pick we did take note that was the basis in the motion for saying that this should be retracted it's what should be retracted the statement of the council yes y believe that what happened was we filed the motions they were granted it was referred to the bankruptcy court it was ordered to file them as an adversary against all parties without any changes so to say that we should be sanctioned for filing the adversary complain i would have been sanctioned for not filing following the bankruptcy court order with regard to the conflicts motion similarly it was raised orally at the january twenty ninth two thousand and ten at this hearing with the bankruptcy court she instructed by mr sharon by m she instructed him mr sharon bach file a motion i'm going to have an evidentiary hearing anyway this way they'll have an opportunity to review it and respond to it so your position is that all these filings are because the district the bankruptcy court instructed you to make them is that your defense that the the guess as to the adversary complaint the motion for conflicts was raised worley and we were instructed to file it in written form that's what happened and we're now being sanctions are being sought with regard to the rule did aren't you supposed to be doing something about it the rules say you are and you haven't so we were concerned and we wanted to hear it as to why they weren't doing anything about it that judge fitzgerald she referred the matter to the department of justice all the relief we had asked for had been granted when there were they all the relief we had asked for had been granted since part of the relief you were asking for in your motions was an opportunity to implicate the tempter seven trustee in a bribery scheme and the and the judge fitzgerald expressly stated i haven't heard anything about that there's nothing to support that you acknowledge that it's a little time she made those comments she was we were all in agreement that chapter seven trustee keeps saying we have accused them of being partizan in a bribery scheme what we said was there's appears to us to be a bribery scheme and don't know if you're participating in it we need a referral for an investigation just so determined we did not make the accusation against them in the motion or the subsequent adversary complaint was just a copy of his are clearly erroneous standard for reviewing findings of fact there is another there's case law that says that it's a do novo review that even on a summary judgment of fact of the facts i agree with you ok so there was an evidentiary hearing judge who gerald makes findings of fact including that there is no foundation for including mr carroll fox rothchild in any allegation associated with the bankruptcy excuse with a bribery scheme  the district court in reviewing that does not appear to apply clearly erroneous standard and anyway is that correct there's a there's a presumption  the question your honor which apparently haven't made clear in my response to you and that is we did not say you are participating we said well whether you whether you think you said it or not apparently judge who is gerald thought you said it because the way she framed  sanctions or was that you're guilty of bad faith multiplication of proceedings in part and in the main because you use this bribery allegation as leverage to file a number of motions have a misread her her ruling i don't think you except to the extent that i just articulated i don't think she accuses us of making the allegation that they are participating in a bribery scheme at her comments were made on the record in response to the same argument that's been made throughout which is the chapter seven trustee saying you've accused us of being criticised in a bribery scheme she's saying back to them no there's nothing in the motion you can read  that accuses you of being participant in a bribery scheme there's these other problems and there's this request for referral which she granted to investigate what was going on so it could we get to it we have jurisdiction up jumped to the end the district court made its decision and vacated and remained it there was more first of all the court's aware from the questions about the arguments that were made for full blown evidence you're hearing sure there was more than that there was an escrow agreement where whereby the three of us council were escrow going monthly pay such as ministerial to just take care that that was well ministerial there was briefing response right pli and a hearing with with argument on the record and then a subsequent decision there was an a a a substantive argument that had to be determined well it's if to the escrow agreement it was not ministerial also if the court looks at the procedure that's being requested there that it would allow for direct wheel from the bankruptcy court to the third circuit then the case was really reminded back down it wasn't back your money that's what was going on after the district court vacated that was a suit that that required a substantive determination a substantive interpretation of the language of the contract that was not a ministerial act there was briefing response reply directly contrary to the position you're taking the force now than in what happened at the bankruptcy court level was that we had a new judge so they were asked and she had announced it's not in her minute record but she had said i am not going to in response to their arguments i am not going to rehear this whole case she she did say that but you i'm asking about you not not judge wallraff you argued was sypher asli there's nothing more to be done here this is over the judge the district judge gave the its own review of the record and said there's not a basis for sanctions were finished wasn't that the position you that was our position yeah ok so what's different now how come you can say that on the record in the bankruptcy court assert that it's final and then come here and say and that really we asserted that there was nothing more for the bankruptcy court to do that we wanted the bankruptcy court we didn't want another he no question about that we were we wanted to be done the bankruptcy court didn't say specifically i agree that's a final hearing a final order and all i have to do is ministerial what she said was i'm not going to relive this case i'm not going to rehear it she hasn't lived the background of the case she didn't want to get involved and that's the decision that was made yes that i take a position to take a position in yes we did and we argued a let me put to you the same question i asked mr israel if the if there were other issues and parties whose the resolution of whose issues had not been dealt with in the adversary proceeding at the time you took the appeal of the sanctions order how is it that the district court could properly have exercised jurisdiction over your appeal i'm not aware of there being other will what was left to be dealt with wasn't at the time you took the appeal correct me if i'm wrong at the time you took the appeal were there still issues in the adversary proceeding associate with the chapter eleven trustee with all due respect discussion that at the time you took your appeal there were still issues outstanding in the adversary proceeding that that had been entirely wrapped up would that have made the bankruptcy courts work or non final and therefore not appealable to the district court that that's a tough question did file an initial appeal when she found us that we had violated the rule that was sent back by the district court as being not right after she filed found her monetary award it went back up to the district court and the district court accepted jurisdiction as to the other parties  i haven't research that your honor i don't i don't have an answer for you on that whether or not the because that they could be separated in such a way as to be separate and distinct ok and i'm imposing on my colleagues here as well as on your time i apologize one last question assuming for the sake of discussion that the district court acted without jurisdiction because that was an on final order from the bankruptcy court what would proper resolution of this appeal be that is would we be balland as mr israel says to vacate the district court's decision because it was without jurisdiction research or some other resolution to a problem of that nature that that follows on that's an interesting question i have not reviewed because it in review the initial question that you asked it would seem there would need to be some i would argue there would be some equitable tolling because the court the district court had the right to determine its own jurisdiction which are i think you're saying is what if they were wrong i'm not sure whether that would act as a tolling the courts taking jurisdiction would be an equitable tolling i don't have the answer to that thank you  and by the way on the december twenty eighth two thousand and eleven memorandum opinion no appeal was taken from that because action appeal taken it was late and it was stricken so note that the final done complete get get it back to the question just for tad  which of my point which is you know this all happened all the following three weeks after and i think my opponent said well we got all the relief we sought in fact keep in mind a one week what was happening one week after those filings were being filed was there was a discharge trial which was coming up and we believe that the reasons for these filings war to delay that and the proof in the pudding that was a motion for stay filed on the same day the motion have a natural hearing was the the the question of whether or not there was a clearly erroneous standard was properly applied here we believe it wasn't if you look at the opinion itself the actual district court opinion what the judge that the judge he some statements here which look like it could support that this is baseless and there's other statements was looks like it's support that it's not baseless when he does that we believe respectfully he commits error because that's not for the district court to do something to be done by the by well not by the bankruptcy court a point which you made when you were talking to the bank no question about it that's what we believe we are here to judge walworth but i will say that having had a chance to look at the issue now that was raised by feel the difference is that what the district court didn't do it he didn't vacate with instructions but he didn't we met with instructions for fact finding he remained for proceedings consistent with this opinion and  union said repeatedly things like there's not enough here these didn't do enough this is there's not enough for me to engage in meaningful review this is the clear implication of that go back and do fact finding that's what we thought but but but the fact is though that  that that george wallace i thought otherwise and again your honor i have to come back to what is it we were could we possibly have done if we appeal judge wall wrath then we have that issue in the district court we have another issue that's waiting to go to the wallraff decision to the district court and said hey you sent it back here for a fact finding she said she's not doing it that's a problem because if we were wrong on that we could have done it if we were wrong on that then we now  order ok we can appeal that but this order now we're way late to appeal it's a thirty day long line it's a different situation here in that same you were prophylactic sleeping on the other i guess i'm wondering if you're really worried why you didn't just like said that effectively if the purpose is to appeal the final order even if you didn't we're going to we're going to we're going to assume that you meant to or going to permit we're going to permit the review because again this court looks to c to the supreme court and connelly aversive gives in where the court says you don't want to kick these things on technicalities you want to get to the merits and so if we were supposed to do that we should have again i have to say that difficulty is what i'm struggling with that it's not like that if you have summer judging motion in the district court that's that's you know that should be filed then you have a final judgment and you take both of those up to the same court here you have one in you have one that's already should go to a third circuit