withstanding a three sixty three sale where the causes of action pursued by the trustee do not attempt to undo the sale or challenge the transfer ownership of the property the short answer is yes three sixty three m only protects the parties to the sale and the as the trustee has detailed in his in his brief the creditor body the entirety of the creditor body received statutorily and constitutionally insufficient notice of the sale of substantially all of the assets the lower house how did the lack of notice prevent action before the expiration of couple years for the listing year beyond the sale your honor the trustee was not appointed until well into that year period but that the year period that you're referencing from sixty b actually doesn't apply in this case because the trustee is not attempting to collaterally attack the terms of the sale order and that principle comes from this court's decision  valid case where this court held that foreclosure sales or three sixty three sales any sale that is an engram type proceeding cannot be collaterally attack but the court went on to hold that in that case bankruptcy court in this case was concluding that the trust these claims constitute a collateral attack on the sale order this court has made clear as i said in the book valley five decision that where a trustee brings a cause of action for breaches of duty to the state even if those breaches are in connection with the sale that those causes of action do not collaterally attack the underlying sale order this is because those actions are arising not out of the sale but out of the relationship of the third party to the estate and the duties that the third party has to the estate the adelies argue that the decision in rebirth valley is not applicable here because it was a foreclosure sale rather than a three sixty three sale but that's really a distinction without a difference three sixty three sixty three case this court nonetheless held that because the trustee was attempting to bring an action for a third party breach of duty to the estate that that did not constitute a collateral attack and so relief  in that case the principle adopted in valley has also been adopted by the second circuit in the brown media case that we cited in our brief and in short what that case also recognized was that where a plaintive is attempting to recover for breaches of third fourth from independent third parties for breaches that those third parties in acted against the plaintiff that those those actions arising out of the relationship between the third party to the pla and do not arise out of the sale even if the facts complained of and the circumstances were a three sixty three sale but that's not the proper consideration and that's actually in line with this court's decision in the reg which was cited extensively by the apple e's in that case the court additionally noted that that three sixty three m only protects the parties to the sale and the transfer of the interim property within regions regions bank did not have any third party or do sherry contractual duties or relationship with jr oil the defendant in that case so there's no way that the claims that regions was making could arise out of anything other than th sale in contrast in this case like the decision in five and like the decision in brown media the claims even though they involve the context of the sale do not arise out of the sale of the property instead they a they relate to interpol provisions of the sale order now the interesting fact here is that what the lower courts did is that they basically confuse three sixty three protections with race  estoppel protections three sixty three protections as i have said to protect the parties and the property that is transferred there under collateral estoppel and race judicata on the other hand do protect the findings that were actually unnecessarily litigated but those protections do not apply they are not they they don't apply to everyone that has anything to do with the proceedings they only apply to those people that are in pretty with the entities that were parties to the initial sale so that me that bankruptcy courts do an awful lot of ill to people that they undermine liens and they take property away from people and they give you cents on the dollar for your property but they do all of that under a code that require substantial notice and opportunities to participate all of the creditors and here that opportunity to participate simply wasn't given and so why was that because the way that the notice was given in this case so going through the docket on december i believe is the twenty third documentary three fifties the the lower court the defendants filed the motion to sell substantially all the assets that motion which detailed the the  context of the sale who it was going to continue to be to how much it was going to be for what property was going to be sold was not provided to the entire creditor body which was in excess of five thousand people i think it was provided to eighty four something like that so the entire creditor body had no way to know the details of what was potentially up on the auction block now the apple is did provide a notice but the notice simply said that bidding procedures and a stalking horse better had been adopted by the court and that potentially the that some of the allen's property again it didn't identify what if the property some of the islands property was potentially going to be up for sale now this notice is constitutionally and statutorily insufficient for a myriad of reasons but has explained that notice under three sixty three where you attempt to sell substantially all of the assets needs to add a minimum do these things disclose accurately the full terms of the sale explain the effect of the sale  include when and where except that it was actually an accurate it stated that the sale was going to be on february tenth and the sale was actually at the sale hearing was actually conducted on the eleventh what justifies  the all the details of it the sale order itself was also not served on the entire creditor body so there are potentially still creditors today who do not know that the allens property has been sold and what the context of that sale was legally again as i said the the delay is really not just that it is the question of the one year under sixty b is not relevant here the only relevant question for timing purposes is a statue tory a statue of limitations question and the  not there's been no argument that the trustee has violated the statute of limitations in this case and bring when will you trust to you pointed with respect to the sale i believe the trustee was appointed approximately eight months after the sale but i don't have that in my notes exactly  t he was appointed appointed within the year period but part of the problem again practically was that he was appointed to an estate that had no money with a creditors committee that had a  gag order that basically precluded any one in the creditors committee from speaking to anyone about any of the context of the sale the auction was taken took place in the years office where they turned the record off and on sort of conveniently during the sale so the entire process was not transparent as is required in bankruptcy proceedings and again you can see the failure of this with the notice or lack thereof that was given throughout the bankruptcy proceedings so they provided notice notice that they were going to sell  is that approximately one hundred million dollars was going to remain in the in the allen's estate after the seneca sale at no point following that notice when they said here's the seneca a p a go look at it if you want to we're not going to touch it for you got to go find it at no huge because the segregate v a rather than leaving one hundred million dollars in the state left nothing so creditors who believed initially that they were going to be getting a distribution from this remaining hundred million dollars in the state have nothing free from collusion and fraud that the consideration to be provided by the buyer was fair and reasonable that it was the highest and best available offer that it was in the best they'll became final on february twenty eighth two thousand and fourteen the trustee was appointed in this case in june of two thousand and fourteen and yet almost two years passed before of this action this adversar courts the rule of ninety twenty four goner and so here the basis for the trustees claim basically comes down to the idea that there was some sort of fraud or wrongdoing as part of the process so naturally the way that you would attack that sale order would be through sixty three the problem of course is that there's a one year time limit and rule sixty as well that's not applicable to the trustee here where their claim is that there was  here however the bankruptcy court properly found that there's just not evidence sufficient to plead a claim for fraud on the court fight of the court requires much more than what the trustee played here it would choir's that there be agree just conduct that defiles the courts it requires context such as the bribery of a judge manufacturing of evidence lying to the court where you have an affirmative duty to be honest it's how the court something that just simply didn't happen here so is it your position that the case could be resolved just on the one year time limit without getting into the application of three sixty three  preclusion or would you have to get into those as well three sixty three m is not applicable in this case but you would have to rely on a rage a kata ok so you're not relying on three sixty three o privy between the creditors previously and then now those represented by the trustee why is that incorrect which the which why do we have the same parties well so there's there's two things up here one is the idea that there's property between the trustee and the creditors and then the other ideas whether or not those creditors received notice so starting with the notice issue  contrary to what the trustee argues all of the creditors here in fact did receive the notice that was required for procedural due process requirements all that's required is a notice of the dow and opportunity to participate in the object and they all received that on january ninth the debtor's filed a notice of the big procedures a fair hearing and a notice of the deadline of objections that was sent to all creditors on january tenth that met the procedural requirements and rule two thousand and two c it provided the date of the hearing it provided the location now it did not provide certain information that's required of a private auction but that's because it was a public auction so all of those creditors did receive notice so then turning back to the perfidy issue the trustee has argued various times that or more defendant in their specific causes of action and a sales perceiving at that at a forum where a lot of parties are coming together the creditors potential bidders and they're all coming together in the sales proceeding to figure out what the outcome is for the debtors estate and so it's not just the actual parties to the order to have privity and that were part of that proceeding but it's all of those parties that were represented whose interests were represented there and who participated in that and that includes all of the defendants here now the trustee also challenges whether or not the same causes of action are the same claimants claims excuse me  the proceeding and that brought here it just means that they have to arise out of the same nucleus of operative fact the act to come out of the same actual predicate and here there's no question that the claims that the trustee is bringing a rise out of the auction process each of the fourteen claims that the trustee brings directly implicates whether  the purchaser state or creek be afforded good faith purchaser status a court made these decisions and the trustee had not now attacked them now even if for some reason there was not privy in this case the trustees claims would still be barred and that's because of this court's holding and regions bank those court held that after a three sixty three that after words that order is protected from a collateral attack that five way by the by the nature of the transfer of assets in the enron proceeding but i he did not leave the back down that route but those same define now the principles that are drawn from that section three sixty three m and those finale of principles are that a bankruptcy sale of the finale so important in order for there to actually be a market for that they're so important that you can't even directly appeal a bankruptcy order where there's a good faith purchaser so that but that same finale that's drawn from three sixty three m comes into play well i don't think i understand but i'll try to figure it out i mean three sixty three m is a specific provision that bars collateral attacks to go beyond that i'm not sure what the authority would be for that there's no statute that bars collateral attacks that are separate from an appeal there is a doctor race judicata but you seem to be adding another now this doesn't mean that the trustee would never have an avenue for relief if there was fraud in a section three sixty three sale and we talked earlier about the fact that there would be a potential avenue for relief under sixty three but that's time barred here a potential avenue for relief under fraud on the court but the trustee didn't plead that to establish fraud on the court and then there are other potential avenues for relief under sixty be none of those apply so here although it's not in the trustees complaint through his briefing and on appeal at the additional arguments regarding due process bharti explained that the truck creditors here did in fact receive procedural due process they had notice and an opportunity to appear an object of the sale the trustee also raises the issue of whether or not the order should be barred by the supreme court's holding and javac that holding has no application to this case at all it involved a structured dismissal and it was decided in two thousand seventeen more than three years after the sale order java could not be applied to overturn a sale order in effect for three years and the trustee also argues that the creditors were denied due process because a bankruptcy court did not make the necessary findings verbal sixty three b c ordered to be authorized and that's just not true while it is true that no specific evidence no witnesses report on during the order that does not mean that the court did not make the news and informed findings the court was aware that there were witnesses present that could put on testimony but the court was also aware that all of the objections to the sale had been resolved and the court had in front of it the a p a the backup a p a it had the auction transcript and i have that over the case for four months with over six hundred dock entries and the court determined on the record that it would take into account everything it had learned throughout the case and everything at heard  source of zero is in and looking at three sixty three and then reading regions bank i take it your argument is that regions bank is binding precedent for the proposition that in the absence of films showing idea that you have to have the now the so that there's a market for the assets i think that's where it comes from would would overturn this court's decision in the valley because unquestionably the claims that were brought to the breach of fiduciary claims that were brought in burke valley a rose out of the same nucleus of operative facts that the foreclosure sale happened under and it would just like you would bring against your attorney if you believe that they committed malpractise or if you bring against your accountant if you believe they did your taxes wrong it's the same sort of breach of professional duty that was that was owed to the estate also in on the issue of  whether or not the trustee is in privity with anyone who is a party to the initial sale this court established in the in re marler case that if there is a creditor who was not afforded notice and an opportunity to participate in the actual sale proceeding then the trustee can maintain the claim and here it's obvious that the there were a and an entire body over four thousand creditors who were not provided sufficient information regarding the terms of the sale and this court has already stated that knowing the terms of the sale is critical in establishing whether or not there was notice in the in re wince case the court approved a notice but stated that it was deficient in light of the changed terms of the sale so that language alert us to the fact that creditors are entitled to know at least generally what the terms of the sale were and here the creditors were given no notice of any sort that over seventy four million dollars in preference actions were going to be given away for free was not mentioned in the in this and that a p a was brought to light only through the auction that happened four days before the sale and there was no notification provided to any of the creditors related to that and finally as far as brought on the court we have pled that there were certain legal required disclosures that were not made and this court has held that required legal disclosures that are not made amount to an affirmative misrepresentation sufficient to support from the court and like i said we don't need from the court because we're not attempting to challenge it to collaterally attack the order