the case is in way or an anderson first credit one in which means it's a bankruptcy and this was assigned to the panel thank you your honor may please the court no a living for credit one bank the question on this appeal is whether congress intended that the particular claim that plaintiff is brought here must be decided by a bankruptcy court instead of sent to arbitration we believe the answer is no for at least three reasons the first is that arbitration of plaintiff's claim here doesn't present any of the conflicts with the bankruptcy code objectives of centralization of claims against the estate that  previously led this court to affirm denials of arbitration motions second plaintiff's argument that the fresh start is fundamental to the bankruptcy code provides no basis for denying an arbitration motion because the supreme court has said repeatedly that even important rights may be arbitrated and third plaintiff's argument that the bankruptcy court cannot be stripped of its power to enforce its discharge order directly contradicts the particular theory of the case under which he is litigating in the bankruptcy court and which the bankruptcy court has endorsed so on my first point you make that theory now is the bankruptcy so this is brought as a class action you won't hear my opponent say or if you ask his counsel here today that the bankruptcy code imposes any impediment to a bankruptcy court inforcing discharge orders entered by other courts that's because it's a class action in the haynes this is you've heard you've seen in the briefs as my colleague has explained on the other side that there are six cases proceeding in the bankruptcy court against banks all represented by the same plaintiff counsel tasked with doing in these cases is interpret ing and applying the text of section five twenty four eighty two the statutory discharge injunction the order the discharge order doesn't matter as he explains he doesn't even review discharge orders before he enters them under section seven twenty seven any of the bankruptcy code the bankruptcy court must enter a discharge order one certain criteria are satisfied and then section five twenty four and two of the bankruptcy code prescribe effect as judge drain said the clerk of the court issues those orders as a matter of course in his courtroom and in courtrooms across the nation so under this court's decision in hill where you said that the automatic stay wasn't so much like an injunction that it requires the unique expects parties of the bankruptcy court to enforce to interpret and enforce its own order that's exactly true here that is the theory that judge train has said applies here the reason that he can entertain a class action is because he's applying the text of section five twenty four eighty two in bankruptcies across the nation if a class were to be certified and underhill what hill says is that if you don't need the expertise of the bankruptcy court to enforce its own order for example like in a large reorganization or a liquidation plan like in the lehman brothers case that your honor decided at the district court level or the reorganization in the us lines case those are really complicated orders that come out of bankruptcy courts that require all of the expertise and all of the centralization of disputes of claims against against an estate but that's not the case here it's easy enough to do doesn't mean that it's not fundamental or central to the bankruptcy code isn't that what george green was saying i don't disagree at all about the importance of the bankruptcy code the discharge is important to the bankruptcy code but that doesn't answer the question  posed by the supreme court precedent in this area the rights under the sherman act the rights under the age discrimination employment act the rights under the securities act of thirty three in the securities exchange act of one nine hundred thirty four rico those are all important rights what the supreme court has said is you can't assume that an arbitration isn't going to be able to enforce those rights so let's look specifically at the bankruptcy code arbitration jurisprudence of this court that's why you ask as a legal matter is there an inherent conflict between the purposes of the bankruptcy code and arbitration and you say that that conflict exists just because a right is important you have to ask why would arbitration jeopardize that right and there is no explanation my opponent's argument stops with the right is fundamental the bankruptcy court actually tried to make a couple of question oh yes i'm sorry just churning go ahead that is this you seem to be saying that you don't really need the expertise of the bankruptcy judge to enforce the injunction that's part of the discharge in these cases then but then you say the class action allegations make it very different from the typical inforce one of the injunction in a discharge or are those inconsistent positions or why in you said this court said the fact that a case is brought as a class action matters it demonstrates that there is no connection between the particular claim that's being brought and the bank underlying bankruptcy case the reason we say the class action is important here is it demonstrates that their main theory that you would be stripping bankruptcy courts of their power to and force their own orders to hold water in order to certify a class action you necessarily have to strip bankruptcy courts nationwide of their power to enforce their discharges and that's why i don't believe that my opponent will say the bankruptcy code itself which is what the supreme court precedent asks us to focus on is let's look at the statute is there a contrary congressional command they will not say that the bankruptcy code poses an impediment to one bankruptcy judge and forcing a different bankruptcy judges order indeed section thirteen thirty four b that gives jurisdiction jurisdiction state courts can hear these claims if they want and that's also a point that was made in hill that because there's no exclusive jurisdiction in the bankruptcy court this is not something that you can say congressman to be exclusively decided by the bankruptcy i was also curious about this concurrent jurisdiction argument and it seems as if some places are saying it's concurrent between that this record and the bankruptcy court and some places it's the federal courts and the state courts and if it's the latter what is the concurrent jurisdiction of state courts to enforce the injunction is embedded in discharge orders how does that work the way the way it would work is that if there were a claim bro certainly interposed a discharge function as affirmative defense if that's where you wanted to litigate it you don't have to you can come back to that you can come back to the bankruptcy court if you have an agreement to arbitrate you can do it there our point this is obviously not our main point but it is another point in which this case is on all fours with hill this is a case it's a dispute between two people it's not a dispute between thousands of claimants it comes after the bankruptcy case is over has no effect on the estate it's brought as a class action and as our o focusing on is the fresh start language there saying that they did not require the protection of the fresh start anymore but i don't think this court says anywhere in hill that the converse is true that just because a fresh start is at issue arbitration is never possible that would contradict  automatic stated provisions which were concluded once once the discharge was granted no one cared any more about the automatic stay that was in the past is not a distinguishing feature of this case and hill that is a  distinction it's not one that i think has any legal relevance and i would point you to judge terrains decision that i would in the haynes case again look at page eight he actually equates the automatic stay provision three sixty two eight and five twenty four he there's some language in it all about you know what hill does is it says that there are three purposes of the automatic stay one of them is that it gives a person a fresh start the other is it helps preserve the assets of the state and the other is that it helps to centralize all displaying claims on the estate in one jurisdiction then this court marched through all of those and showed why arbitration of the automatic stay would not jeopardize any of those in this case it may be that the fresh start is important maybe even fundamental but you need to have a reason why would arbitration of that claim jeopardize it why can't an arbitrator hear that claim there's no answer to that in the briefs in this case and that's what the supreme court in your cases on bankruptcy an arbitration say you have to do you have to identify the conflict between an objective of the bankruptcy code looking to the text legislative history or purposes and then there has to be an undertaking to make a particular  inquiry into the nature of the claim and the specific facts facts of the bankruptcy case there's none of that in our opponent's argument the argument is that section five twenty four claims are per se not arbitrary and i knew you would say th do no you cannot enforce a five twenty four discharge order in a state court you can raise it as mr levine says as an affirmative defense and that has been true since the founding of the republic but as our amicus point out the congress finally realized that you need to have the jurisdiction of the federal court to enforce a five twenty four water if i'm being harassed by a creditor i have a discharge injunction and i'm being harassed by a credit on a collection matter the only place i can go to stop that collection or in this case the only place mr anderson could go to stop the erroneous credit reporting was back to federal court and back to a bankruptcy judge so there is not concur country that placing a charge off on a credit report is a derogatory indication that indicates to the person that the debt is still doing knowing it's an it's incorrect because a charge off indicates the debt is still doing knowing when it's been that's the charge off exactly if the charge off what what what credit one insisted on doing was when it sold a debt it's it put on the credit report charged off the sole transferred zero balance that's an indication to the world that the debt is still doing owing and can be collected and as a derogatory indication that affects a person's ability to great credit for example in the barrack of c quote we submitted the affidavit of an expert who said you cannot get a mortgage w absolutely which is why judge drain said it's an attempt to collect a debt it's a lying in wait a creditor who allows a charge off to stay in a credit report knowing that the debt has been discharged and refusing to correct it to put included in bankruptcy which is the correct as a nation is hoping that the person will eventually pay the debt and the people who buy the debt from credit one and chase and bank of america and all the other defendants value the debts higher because even though they've been discharged in bankruptcy and their credit reports have been continued to designate a discharge debt as charge off rather than included in bankruptcy and a credit report has been issued with that iranian information on  asked for a nationwide class and the fact that judge drain has said which is a not an issue on before this court judge drayton has said under one hundred five of the code i have the ability to enforce other bankruptcy judges injunctions but let's be clear it's a contempt proceedings it's it's it's the orders a judge drainers enforcing our injunction orders the order if you look at the order in the record it says all creditors are here by enjoin from enforcing this debt and what they're suggesting is is that and no other court has ever held this that a arbitrator a private individual can be vested with the authority to win in force the integrity of the court no really has no effect on a fresh start what difference does it make here he had to file a motion to reopen the bankruptcy there were proceedings there was discovery how how how was it really different if instead he was forced to proceed in arbitration as to the resolution of this issue imagine if you will judge that you're a creditor who has to appear your credit one and you have thousands of bankruptcies and you have you  have claims in bankruptcy courts and a discharge injunction has been entered and you know that if you are going to violate that discharge order you're going to be back in front of bankruptcy court with a contempt citation and a sanction from the court now imagine that instead of that you invoke your arbitration clause which you have in every sink with every single customer and you say we're going to go to aaa to an arbitrator that i have a choice in choosing how what is the effect on the ability of the court to enforce the integrity of its orders take this two step process because an arbitrator can impose sanctions an arbitrator can find somebody but they are betrayed or can't collect a judgment the bankruptcy court has to collect a judgment the bankruptcy court has to enforce a sanction so instead and if you have if you  of judge drain and you say i have a discharge order and they are they are seeking to collect and the judge drain who sees this every single day and adjudicates this issue every single day can evaluate what kind of sanction is appropriate it's not just interpret ing five twenty four as mystical being says it's what is the proper remedy to enforce the integrity of the court in a make sure these debtors are not harassed by creditors credit one chase all these other creditors have hundreds of thousands of cases can you imagine relevant as to whether should stay in bankruptcy court what's the effect of the class action allegations here i think actually the fact that there's a class action here councils in favor of having cation in front of the judge rather than the arbitrator we're talking about judge drain deciding the fate of literally millions of people in a in several hundred thousand for credit one over a million for chase several hundred thousand for the other defendants and he's going to make a decision as to whether including a charge off on a credit report violates the discharge order and instead all the creditors for obvious reasons say no no no judge rein you shouldn't decide that and you get your honour's the second circuit shouldn't weigh in on that that all should go to no use of different private arbitrators all of whom are going to make a private decision whether that violates the discharge order that's ridiculous  case and you give due deference to the exercise of discretion which my adversary doesn't even mention in deciding where they're sending to arbitration ness adversely affects the policies of the of the bankruptcy code that's exactly what judge drain it did that's exactly what judge roll monday did look at the facts of this particular case the particular issues in this case what we have here is a five twenty four unlike hill the issue when hill was the bankruptcy was over we're talking about a state the person got their money back and in that in the unique facts that case the court said you know arbitrator can decide whether you should be fifty four dollars hundred fifty dollars charge was improper here we're in the we're in the critical point we're in the critical point of the bankruptcy case the most important as judge drains that the most important aspect of bankruptcy is the discharge is the fresh start and he eloquently talked about all the people who have to go through the laborious process in order to get the fresh start so one is the fresh start most important after the bankruptcy five twenty four always comes into play after the bankruptcy and in that critical time period is when these defendants have violated the discharge injunction it's so unlike hill we are in the critical period that the provision that was enacted by congress has a smoke important effect the automatic stay was over and hill so try to understand why credit one just would remove this  judged we've had probably fifteen hearings in the six different cases and four to dredge drain in every single hearing judge drain asked the question why do you continue to do this and it is in fact the case that several banks during the proceedings voluntarily agreed to stop doing this credit one waited until the very end when the judge was about to hold them in default for its discovery violations and for lying to the court they finally decided at that point in time that they would also do that and they've entered into they've now entered into an injunction in this case in the in the court and tomorrow we have a hearing on certification of the class in this case but credit one until the very end until they were about to be held in default refused to make the change do you know any more going forward they very they've now entered an injunction saying they will not do it anymore going forward and the question now before the court is what's the appropriate remedy should there be a sanction for credit one's continued refusal for a number of years to correct these trade lines when they knew that judge drainage held back in two thousand and seven that this was a violation of five twenty four so in conclusion your  no private party no private party can divest the court of its ability to enforce its own orders and when congress passed the the the arbitration acted in one nine hundred twenty s no one in congress intended for fo private parties by agreement to say we're going to divest the court of the ability to impose contempt to enforce its own orders in this case this case involves the integrity of the bankruptcy system and the ability of bankruptcy judges to enforce your orders if you take that right one has and i'm glad he said that i'll start with that point in hill when the arbitration motion was heard in the lower court and happy everything happened started during the bankruptcy by the time it made it to this court there had been a discharge you take  on the merits i would strongly dispute the merits there are reasons why i credit one reporter the way it did and why they strongly dispute that there is any inaccuracy but on that point you take that as you said drama's you take the  particularized claim in the case and you look at the facts and i strongly disagree that judge drain said that section one hundred five gives him power to enforce discharge orders from the other courts look at page nine of the decision we cited pages in thirteen and fifteen and i'll read it to you he says there should be no issue here either that section one o five a is properly exercisable to enforce the discharge under sections five twenty four and seven twenty seven of the bankruptcy code he notes that it is not a license to enter his equity power with respect to those other courts but he says but here there or that's a tallis ised such specific provisions sections five twenty four eight two and seven twenty seven the particular theory of this case matters the supreme court has said over and over again that arbitrator's can decide statutory rights this is not the type of complicated multiparty a state specific claim that you need the bankruptcy court to be deciding this is a two party dispute about whether credit reporting constituted an act to collect a debt which we strongly dispute that it did and that an arbitrator can decide when to sanctions fo the arbitrator for that we have not taken any remedies off the table in the arbitration agreement whatsoever the last point i want to address was discretion so that i said nothing about it there's a reason i said nothing about it starting in us lines and through every one of this court cases about bankruptcy in arbitration you said this is a mix question of law and fact the legal questions are to novo fact is reviewed on clear air there are no fact findings that are being defended by the opponents here there is nothing factually that was said in the record about why arbitration can't proceed here or why arbitration of this claim would seriously jeopardize the fundamentality of the discharge injunction in mr anderson's case there were a lot of arguments made about whether this should be done as a class action or otherwise the supreme court has been very firm on that ground and said that is not a ground for refusing arbitration if people choose to have simpler procedures through arbitration because they want to avoid the procedural morass of class actions they can do that and as they have said in judge trains court if they're seeking a contempt like sanction it's not contempt and you can read their read brief it says it's an action that is governed by the standards of contempt they can seek reasonable attorneys fees with your honor judge butler and your concurring in the denial of rehearing in bank in italian colors you said that those types of fee shifting provisions can actually ensure that people get their relief they can see that in the arbitration as well can you spend ten seconds and explain this to me is there more to the charge offs for debts that have been destroyed from bankruptcy there is a market for selling charged off debt there hasn't been any proof as far as i'm aware anywhere in the bankruptcy in the bankruptcy court yet only hypothetical assumptions about whether people would  for debt because they think that the person who selling it is not going to update it to show a bankruptcy discharge i think that all the debt buyers would probably say when held into court that they don't want to collect bankrupt at they only want to collect discharge debt and if you want to ask about the the point here is that the federal banking agency said that when you sell it at all you do is you report that you sold it and you say no more the fact that it is charged off doesn't say that it's still owing it also doesn't say that it's not still owing it just says that it has been charged line is showing the dead is still owing maybe they've they say that there's that they have evidence that so we strongly dispute all this the fact that there are merits disputes has absolutely nothing to do with the inquiry under the supreme court's cases under the federal arbitration act or this court cases that you have agreed not to include reports correct i believe that that's correct the stipulation is in the record so i'll defer to what exactly what the stipulation says i'm not counsel in the bankruptcy court and so i don't want