what's it that's all that's all what's at stake is the it what would be the sanctions or the cost in legal fees and we'd be entitled to under three sixty two k one correct  i may just to really summarize where this case lies can you also put please address the question that we ask you to be prepared for with regard to the really the intersection between order of april twenty ninth this court directed the parties to august twenty ninth i'm sorry i said i polished as aug twenty ninth to discuss how if at all this court's analysis and disposition of this matter should be informed by the court's prior interpretation of three sixty two  along which provides that except in situations not of political here and the individual who's been injured by any willful violation of the stay shall recover actual damages including costs and attorney's fees and in appropriate circumstances may recover punitive damages here you're out of the court's prior interpretation of three sixty two k one is set forth in the cries and the weber case the cries in case of nine hundred ninety in the weber case two thousand and thirteen and our position is that those cases should lead the court to find that a willful violation did occur here and the violation of the state occurred as a result of the fact that one the defendant appellee knew  then gets notice of the stay and then fails to return the automobile and that's what led to the to the determination there with respect to i think and remained for determination as to whether or not there were should be  that and that's all i said in the course of that that the clerk of court looks and says oh my gosh we forgot to file this violation well yes your honor the acas he went to look at the docket when you me very much so that's right i understand i am trying to figure out what what the range is here well and now you're telling me that if i if i just go to look at the docket in the clerk looks at the dock at the same time as i do and says oh my gosh i forgot to i forgot to file it in the files ok that may not be a violation or it may not be a willful violation ok right but calling up and saying what happened well that's not what what happened is is that they were sued and then they want to the clerk's office and say what happened and then miraculously days later the judgment appears of record on the docket where it should have were entered to initially extend the perfection of the of the judge now let's let's let's take just following up on judge this line of questioning let's say that the the  creditors counsel was visiting the clerk's office on another case totally different case and the mere presence of the coun the clerk to realize that he forgot to dock at the extension water on the judgment docket and it's you know in this this case that we're concerned about ok what's the result there the result is that the lean is still invalid as a result of the fact that it occurred in violation of the automatic stuff who is vice who violated the state in that circumstance your honor i can't honestly say what we stabilization or it's not going to change the end result of the case the only issue will be whether or not the court determines which the lower court is prepared to do is to determine because she split the issue when she and she was going to have the hearing on the issue of the cost and expenses is whether or not that act as it took place could be considered willful or not and therefore  which that's correct and it's the intent to do the act and the intent to do the act in this case was and it was intended for the intent to do the intent it was to was to make inquiry as to why there was no judgment when of record and when you just coincidentally in connection wise in their judgment why isn't the extension of the law clerk did on the law students writing an article for somebody violate the automatics no because that law clerk did know of the decided to act to create the heavens and the earth it might have all been an accident that he didn't have to he didn't have to want to create it he just had to do something which result well it when you say deliberate i mean if it if it's an act your honor that happens not by virtue of any step take by the defendant appellee in this case no that wouldn't be a step for example under the under the under judge halls justice holds question of i'm not there yet ok judge halts under your under your inquiry about whether or not the student who's doing the the the the search of the research goes to the clerk and and wants to find out why judgments have been entered and how often does it happen that is an act that that is taken that that act ok was a violation but it's not a knowing violation of the state because they didn't know of the state bar you know whatever transmitter former life i used to work for  insurance company that provided malpractise defense and blowing a lean or a lien continuation is pretty sure way to get yourself sued if there's a lot of money at stake right at the directory on that so immediately the company sends me into say do is do what you can to clean this up a s a piece of that we're not too much on the hook to the to the person holds only right so high as counsel to the lawyer who has screwed up ostensibly call the clerk but it all happens very quickly because he says i got an exam wrong we blueness or there's a bankruptcy now and i asked the clerk counsel to counsel knowing that there's an automatic stay knowing that there might be something and i say what the heck happened i'm just doing a fact finding mission and the clerk records and i violated the automatic  honor i'd i'd have to say i'd not certain because again you weren't going out were you was was your intent to have the lein created again to if it were then you did i'm on a  but what i do knowing that there's an automatic stay i'm getting you around the law student problem right pointed out knowing that there's not a magic stay i asked the question of the clerk to the clerk immediately files so you ask but you're acting on behalf of the carrier who could have potential liability absolutely ok and your act as as i see it still leads to the creation of the lien if indeed the lien is deemed created and somehow right roy as we sit around the corner or whatever yeah and somehow it became retroactive which it didn't in this case ok but i think that the active inquire inquiry that in panels that i have been on we've had one wire whether there's a stay in effect whether the appeal is going to go on those various  know that there's an automatic stay and you make the inquiry and say what the heck happened in the clerk says oh my god at that point you know there's been a stabilization now in the the the district or appeared to seem to seven realties description of the facts as constituting a mere inquiry to the county clerk not a request for action was that not the case well that would not not not actually are because the issue never came up the issue with respect to what the inquiry was didn't matter as a matter of law the court found that as a hypothetical judgment lien creditor the trustee had the right to void that and and the issue the court didn't determine the issue as to whether  as to whether or not there should be damages that's something the court left open but you disagree that the that you accepted the pallies versions of well i mean the a pelleas version was i made an inquiry but there was never any further there was nothing there's nothing in the record with respect to that and when would expect that the time for that determination to be made would be when the court was going to determine whether or not it was willful malicious and thus you would have a  that you're honest and obviously what this court didn't price in it found that there was nothing that was malicious or that warranted the finding of punitive damages there were actual damage their actual damages and those actual damages under the statute your honor which the court asked the parties to look at specifically specifically state that there shall be actual that she's it's not a question of may it's not even if the court where the court says this is first impression for this court because other courts have gone through in fact and in in price in that the question was under three sixty two h because that's where the section where that provision sat then it now is under three sixty three k any deliber inquiry what happened here that's an act and that happens the question with knowledge of the whether it's of whether that act was in violation of this whether going in asking the question just using the words there whether or not they apply well your honor is i guess i would say this i don't think as what justice judge kogan did below could be correct because what judge kogan said is well if there was an of violation of the state occurred by the clerk clerk didn't know about the stuff the only party you knew about the state was the party making the inquiry and here already knew you and you didn't write anything to happen well we don't know there's no there's the record is not complete with respect to whether they did or didn't ask for anything to happen but even if they didn't that's was that's it that that issue your honor is for the court and connection with determining that whether or not there would be punitive damages i believe but even if there wasn't anything more than the inquiry what happened i know there's a bankruptcy i know my name is not of record i know it because i've been sue this is not a function of us acting as counsel for the carrier and just saying hey i just want to know what happened here you know i want to see where we are above the law that's not what happened you know my client's going w but here you know your client has been sued they went to that clerk's office after the loss and the suit clearly states that on the date that was last inspected june in june of of fifty of fourteen there was no they're not allowed to go in and find out whether that's accurate well i think you can go in and find out whether it's accurate but that's a simple you don't have to contact the plurk to do that well you have to do is go to the record t be well i think you honestly it gets it gets a little bit simpler than that because i think that the emanuel has already been written it's the bankruptcy code and the manual has been written it says three sixty two which says which specifically discusses x to create liens in violation of the stat i think that the issue is very simple prudent lawyers should know there's a bankruptcy case hey if i'm going to go down to the clerk's office and that results in something maybe i should go to the court and say i'm trying to make this inquiry or me they didn't all they had to do to make the inquiry was simply going to read they didn't have to go and say anything beyond that they didn't have to say why isn't my judgment recorded anything in the record that indicates what the nature of the how much the damages are approximates them no your honor it would be it would be the additional legal fees and cost in connection with prosecuting the adversary amending it having to file now an action that not only sought to simply impose the statutory five forty four rights of the hypothetical in creditor which the estate had of the trustee had we now had to seek ad added or an adversary complaint or cause of action for violation of the state and add an action for the on authorized post petition act of going down and having the lien created it made the case morning jim david singer i feel like it was a but you also address the question that we asked yes i did intend to address i felt like i was a deceased person having a eulogy said about here because i was the one that actually made the inquiry i think to to for the court understand factually which i think is very important you have to understand the history of this case and that is that  march of two thousand and fourteen the judgment expired but prior to the expiration of the judgment we had brought motions to extend the statute and in fact in august of two thousand and thirteen we did issue an execution to the sheriff the debtor filed a chapter seven eleven first we got it dismissed and then he filed a chapter seven i had submitted to mr campo copies of the papers that indicated they were filed with the kings county clerk's office showing the extension of the statute of limitations for the sale of the property so there were four letters it showed it was filed had a stamp saying kings county filed on actually it was found on for me ok but it's shows it was filed at least a year before the chapter seven was filed so now he brings a adversary proceeding or going just with respect to the eleven the eleven got tossed and then was there a hiatus or didn't immediately the eleven was actually dismissed on december ninth and he filed the seven of the seven ife so it was the same day then they start an adversary proceeding against my client and in there they say that the docket was never filed with the kings county clerk's office now i know i filed it i sent him proof that it was filed i filed at a stamp that says kings county clerk file so when he started the adversary proceeding all i did was make an inquiry what happened i didn't know whether i had a lawsuit against the county kings county clerk's office i didn't know whether i had a defense to his adversary proceeding as far as i was concerned first of remind me how be inquiry was made worse by telephone no what happened was i had not filed a  claim it's the dark if i didn't file the docket i mean the the the order in kings county there was no point to the adversary proceeding because there was no docket and there was no proof a claim so what was it bring an adversary proceeding to eliminate what he was eliminating the fact that i had said i had filed it and he says i didn't file it i had no idea about the darkening it's just i knew i filed it what did you do how did you cause i went down to the clerk's office and i said what happened and i showed him the papers he said sit here i sat there they ran around scurried all over the place open assume that this is somewhere in the record when you're not testifying because we probably have to put you under threat but but i did indicate in the record they went there and said what happened they told me to come back the next day i came back the next day they said and said what happened he said that's all i want to look at the record that's all they said to me look at the record i looked at the record and the record showed that it had been filed retroactive i never asked them to do it i never made an inquiry to do it all they said was what happened so i could prepare a defense to the adversary proceeding and to see who i could make a claim against the county clerk's office and we did sue the county clerk and the case was dismissed on the statute of limitations basis because it had been over a year in forty years of practice when i filed documents with the county clerk's office i've never had a situation where what's the docket it made it stand to have a receipt for the service brings it back say here it is stamped because i would get a copy that's how i have it it's got a color of a stamp so it's not a photocopy of the stem i'd assume for a year and a half that this they had been k which provides for damage awards when an automatic stays is violated a creditor and i'm quoting violates section three sixty two when it knows of the filing of the petition and hence the automatic stay and has the general intent simply to perform the act found to violate three sixty two but that and i quote no specific intent to violate section three sixty two is necessary that's the language of weber right so while the good faith of a creditor may prevent the imposition of damages it is insufficient and here i'm calling again to excuse the creditor from liability for actual damages why isn't that why doesn't the how does that one isn't that sort of guide us in this dispute and require reversa cases where very you know reading them is very difficult to interpret i have to admit because each and every one of these cases the court has held that it's not necessary to have an intent to violate the automatic stay and it appears that just the fact that the stay was violated leads to liability and yet in each of these cases including weber the court reached the conclusion that it was willful because they willfully held the cause willfully didn't return the cards so on one hand the court has said you don't have to show intent and on the other hand it's in each case it said but here is the willful part that shows that it is that the difference between actual and punitive damages analysis well under three sixty two to show damages the and the court analyze that that the district court analyzed that you have to show contempt which has to a different standard three sixty two k is supposedly now you don't have to show the standards of content you just have to sosa willfulness i don't want to stay in willfulness if i wake up in the morning and get out of bed i willfully got out of bed if i sneezed and fell bed i'm still out of bed but i didn't intend to get out of bed i want to sleep with other out so where does the willful come in on this is has been and and congress put the word willful in there and although the court has said you don't have to have a willful intent to violate three sixty two you have to have a willful intent to do the act that you did not the act that i did was to make a reasonable inquiry as to what happened so that i could prepare a defense avoid a lawsuit for malpractise on the part of my clients think what happen i say i don't know i'm not a lot of find out that that doesn't make sense i'm allowed to find out what happened i never asked the county clerk to file anything i never asked them to take an action i never even spoke to the county clerk i spoke to some assistant who sits behind a desk typing information into a computer that's it that's the highest level of a person i've ever met in the whole system required in order for an act to be in violation of the stay there were no findings on this question of your intent or foreseeability of your action by the district  agree with its interpretation of the automatic stay provision that's one of the issues that that was bothering me in this case there was never any evidentiary hearing as to what happened at the county clerk's office other than my admission that i went there and made an inquiry and to the extent that there would be any testimony it would be exactly what i've said before this court i just made an inquiry find out what happened so i could prepare a defense if you were told to come back you didn't get an answer i didn't get it the next day and on the record and they didn't give me an answer either they just said go look at the wreckage counsel that was it no one told me what happened no back to the to the district court for a factual determination you know as to the question of your intent and whether  ask for hearing either so on this is not that i'm aware the i didn't know the judge was going to find in this direction a lot of things happened in this situation where we never knew what the decision was going to be until we had a decision and the issue of the i didn't even think the issue would come up because of the nature of my inquiry and i admit it is i didn't ask them to do anything just is just the fact that that was violated leads to the fact that you are subject to sanctions and ordered a hearing on the level of sanctions and she's even said in court that doesn't mean you're going to get legal fees and sanctions we have made a determination yet as to why you did this so the court actually didn't impose any sanctions or legal fees at this point in time or they didn't say they were going to have an inquiry into it and the second thing is the decision we never expected it to be so as to affect the cole warner of the property which is now the subject of another matter that's pending before judge lord thank you thank you i mean i didn't have to have a hearing to determine whether it was willful well and you're on it for you it doesn't matter what is important for us most important is the precedent that judge hogan s decision sets which says you have to have intent to violate the state we know that's not the law and the other thing he says this is all about legal fees well this isn't of sending it back and having  come back here shouldn't come in so that if he loses he pays triple of my amount he already knows the reality of it is that this is all a case in which the court said there's a violation of the stay and i will hold in a separate hearing a hearing with respect to the issue of sanctions or damages that is the way the case went there was and then there was and the fact that and then the district court takes it and really misconstrues three sixty two and really goes through this agonizing painstaking analysis to try to say that you have to have intent or feasibility those are not provisions of the code and if we want to stick to strict statutory interpretation there's nothing in it that suggests that and the decisions of this court are consistent with that with respect to your own the issue of whether or not there was willfulness here whether or not that was maliciousness hasn't been determined the reality it is the courts want to do anything it would be to reverse the finding that there was no violation that's wrong reversed judge hogan and say in your decision remanded back to the bankruptcy court for a determination of whether or not the violation in this case was willful enough to warrant this this that to warrant this court awarding either the actual damages a punitive damages that that could be somebody no violation of all there was was when i a person did not ask for anything to be done just as well we don't know that they list me finish my question or you know who didn't who had no intent to have anything done he just was making angry and the violation if any was by the clerk or the deputy or whoever put it on the docket no protonic retroactively who had no idea that there was an automatic stay out there now that is a violation it is a violation but it is not by anybody who knows about the automatic stay yes pleas know no problem i'm not sure your honor that that your set i would agree with you one hundred percent it's a violation is it a violation of someone who didn't know about the automatic stay we don't know that we don't know counsel told the clerk but i know that he says facts today which are nude that he said that he said what happened and they said come back tomorrow come back tomorrow go look at the docket there's a disconnect if i go down and ask what happened they're going to say never got recorded what else do you want to know well not come back tomorrow and here it is on the dock with with all due respect and i come from a different state but there are plenty of public servants certainly around who may be doing a little covering and say well let's check into that come back tomorrow and then all of a sudden things appear where i am and your honor that's that's possible  we find it well i would say in today's meal you might even be probable but maybe we need to go back as judge katzman suggested or at least was asking about for an evident tree here and i'm sorry go back or an evidentiary hearing to determine under all the circumstances subject later to review whether that was even constitutes a violation what occurred because if somebody didn't have knowledge it's not of who did the act it's not a violation right you'll agree with me on that that's what the statute says yes i agree with you on the rights of the clerk if assuming the clerk had no knowledge the clerk didn't violate the right thing at all it was was what happened very whether that's a violation maybe we've even got first amendment problems i don't like i don't i think you're on to the issue i agree with you that there there there certainly would need to be further evidence with respect to what transpired and i think that was always intended with respect to what judge war did when it said when judge lloyd said i'll hear the issue now the judge said there is a there was a state violation but i don't think there's a question that there was a state file ations some somebody stop by later stuff i mean even judge hogan said well something happened that violated correct there was an act that occurred and that act is a stabilization and that's important for the precedent of what three sixty two says you can't be but he may be responsible i'm not suggesting that that couldn't happen if we couldn't craft something that says yet there was an automatic stay by a lation it occurred it's a violation period you can't do this acts to do this or violation to this day and you can if the court was determined but nobody is responsible for then there would be no awarded damages thank you thank you for your arguments