am to be here today in front of you i wouldn't be here if arbor lakes had done the right thing in february of two thousand and fifteen they received notice of the discharge and there was no reason for them to pursue mrs lament at that point there was no reason to let her and smear her into the state court litigation let's assume you're right i mean let's assume that the violated review the standard of review is whether or not the bankruptcy court applied or correctly applied the right standard the bankruptcy court that instead of us whether the bankruptcy court abused its discretion this was not to four however the court abused its discretion when it excused the conduct of arbor lakes so you're saying that as a matter of law the district court abuse is question because it made an  has the ability to comply they must take all reasonable steps but let's but let's and pierce my problem and i'm just let's assume they did everything wrong for purposes of discussion are you saying that under those circumstances a bankruptcy judge must hold someone in contempt or does the bankruptcy judge then can the bankruptcy judge just say in the exercise of my wisdom and mercy a strong tongue lashing is well the ninth circuit case is the one i cited in the brief that there is no ninth circuit case that gives the bankruptcy court the ability to simply excuse our let's numb to make a different question we were missing each other is there a ninth circuit case that says under certain set of circumstances a bankruptcy judge has no discretion except to hold someone in contempt well i would point the court to in raese log in that case the court grant that any district court or bankruptcy court the discretion to excuse someone this was actually the order to show cause it wasn't actually the contempt right it didn't even get to that point that the bankruptcy court decided not to even issue the order to sell cars is that correct exactly here we're not at the point where the bankruptcy court has to fine contempt or not contempt if whether or not the bankruptcy court is going to issue the order to show cause yes to why a contempt finding should be made exact we never got to evidentiary hearing set a briefing schedule and discovery my client was deprived of any discovery in this case and there there was the limited testimony of attorney call but we had no other opportunity to probe asked what steps were taken because our position is they had a ledger and mrs call testified about that ledger and in the ledger she could have determined first and foremost that the property in question had been foreclosed prior to her ever filing for bankruptcy so there could not be any post petition h l a fees that the only thing remaining because there was no step back a second what is the violation here is it the failure to dismiss her sue a spontaneous so to speak or is it the sending her the notice after the status conference that said if you policies underlying that decision apply in this case and in that case the court well you're so you're saying you of the creditor has an absolute duty to dismiss and in fact the asking those who are going to pleasing to judge our position is twofold that their views and qualified affirmative duty to immediately dismiss and not only is that a violation but the maintenance of the action is also a violent action i was going to ask more fundamentally there was a resurrection of the action of this of the missile mete after the discharge and they went into state court and told the state court that proceedings could be resumed against her so it wasn't just a failure to dismiss it was a resumption of the claim against her and that's exactly the holding in that ask adler case where the court held not only is the failure to dismiss a violation the failure i mean the continued maintenance of this action and then that's why i keep getting back to my first question let's assume of that there are some mitigating facts here they're not great but there are some they actually did show the discharge the state court judge the problem got fixed relatively quickly under those circumstances even assuming all the things you say happened does the judge have to hold them in contempt or can the judge just just say don't do that again absolutely it's the court's duty and rule to give full force and effect to section five twenty four and hold them in contempt there's no way these have an order to show cause issued so that the court can sort out what happened because the court never sorted out what actually happened in this case or gave miss limited an opportunity to establish what happened what was known by the parties and how they perceive it in the state court i don't even know if we have to get to the contempt issue to resolve this case because the court never even entered the order show cause correct your honor let me ask a practical question what what relief you hope to obtain in the end do you want to do you want to recover the attorneys fees that your client suffered because of their actions what is what what is it that what is it that you hope to have an e and other than them painting held in contempt to full one is to compensate mrs for having over a six month period getting peppered with notices from the state court and having to assume no you know maybe it's just a mix up between the bankruptcy in the state court and then finally when she realized this you know she was getting ordered by the state court to appear even though that debt had been discharged she was actually ordered to appear at a status excuse me a has raised on appeal were waved at the district court level in her reply she says that are really contend that there are waived but it's not a contention the district court ruled that there were waived they didn't take that ruling district court ruled that all the issues were waived except for the issue of whether there was an affirmative duty to dismiss the state court case after the discharge order was entering that was in the water do you do you agree that the order to show parents in the superior court so all the doctors from the superior court or in i wouldn't so wouldn't it be useful thing to know what the what your side when they were doing it what they knew and didn't know and what they thought and didn't think would be useful to take the deposition of the person who was my awaiting the discharge order and find out whether or not he was doing it in order to harass someone or whether he was just doing it because he didn't know about it well the attorney involved was called necessarily that's the point to determine whether or not there had been a willful violation and i think the court did find that there had been a willful violation of the discharge order which reflects badly on new tourney well what he found was that number one he ruled early in the case that there was no affirmative duty to destroy us what he found was one technical violation which was the notice of the continued status conference which said record you'll see that all the way along it was made very clear to the supreme court judge at the back of stephen filed when the discharge was entered it or they actually filed a notice that they showed the discharge and this is a judge who is very familiar with bankruptcy he's he's married to the two thirds of the bank that didn't stop the validation from occurring the fact that he was familiar with with a bankruptcy didn't stop the validation from having t testimony in this call was that she'd had raised the back of see issue every time in court why didn't you just dismiss her i mean that would have been so simple and then you send a big long letter saying well you didn't do anything wrong you didn't have any obligation to dismiss or point when the judge included her apparently inadvertently why do you just dismiss her and say there's a discharge she's no longer a party to this well this appeared court had had a scheduled a status conference goes to this period court and spirit court says we're going to order a status conference and both of you need to show up or he or we're going to do bad things will happen to you no one says judge let me just dismiss this one defendant against whom we no longer have a claim and then we have six months of procedural nonsense going on maybe they're not heard very badly about it maybe somebody did it in good faith but the question is don't you have  you gave you served a notice on them that said if you don't show up you'll be in trouble oh that's your that's affirmatively prosecuting isn't it but oh no absolutely that was communicating the ruling of the j you know let's go back let's go back a month miss corsa serve a notice on the court and on a presumably on the defendant saying the stays now been west lifted as to all defendants we can proceed and she clicked and she checked the box all defendants why didn't she check the box as to one defend it and we're not going to proceed as to the discharge different that's important that's an important part point now part of it is that's a misunderstanding of the law by buying this little bit of that in fact when it just charges entered the automatic stay is terminated that's clearly so if you say it's terminated because you no longer have a claim against that person it's replaced if that's their position why didn't they just dismiss or instead of sending her notices you sooner notice that we're going to proceed we're going to read the stays no i'm going to fact we're going to proceed against you as well and then you send a notice that if they don't if she doesn't show up at the next task conference that will be a default and you send a letter saying anything wrong well and that we're not going to dismiss we only clarify some things something factually as far as a letter from me that letter was sent two weeks after the case was dismissed they say in a reply that no they filed the order so cause because we refused to solicit that's absolutely not supported by the record if you look in the  but evaluated so i don't think you get to really gauge here that you didn't since you didn't appeal that right what follows from that can the judge say as they get bankruptcy judge here said yeah you guys screwed up but i'm just not going to hold i'm not going to help in order to show cause hearing to hold you in contempt because i don't find the violation to be that serious or or it must the bankruptcy judges your colleague says oh you into court and holding contempt i think mr i see you come to my point is i think you're better off putting for mercy than justifying what you did i can't find any justification for what you did in the bankruptcy judge didn't either but the real question for me other one has to discharge it wasn't the judge didn't say i don't care that there's a dish george i want to send it to both it was the fact that both were in the notice was because your side didn't say the judge the case management statement says just the point blank we are not pursuing ms would matter because her claims of a discharge that was that was in it in the record filed long before this thing it long before would troubles me about the other side's position is i think the bankruptcy judge on these findings could have had an order to show cause and perhaps could have held somebody on your side in contempt my question is must the bankruptcy judge do that on these facts absolutely not content the content power is within the judge's discretion in other words it's in the judge's prerogative but i think that must the court at least have an order to show cause once a court has found that there is no will as to whether or not the the district court could just say i'm not going to issue an order should cost but i found a willful violation that does not track the statute this far as i can tell some curious about where there's a case that would allow the district court the bankruptcy court to do that there's i think a court consideration is the reason why contempt is only brought through an order so cause rather than a motion by a it the statute is silent on it but with regard to any every judge has the power to enforce their orders including the discharge injunction and it's it's within the  sides what differently would have occurred had he had he said show up to show up and we're going to have an order to show cause well i think i think what this what judge lated did went far above and beyond what he was required to do when i'm asking i'm asking something different if this were in order to show cause hearing rather than the judge you say they've made a motion i now have to decide whether to sure sure cause how would it have proceeded differently continued a hearing on two or three different times he got additional briefing he had evidence or hearing and in the end he concluded that that although there was a technical violation  that party shouldn't be held in contempt just one letter has raised several times that she was deprived of the billeted to conduct discovery but if you look at the record carefully she really wasn't she could have propounded your honors i would defer to you to see if there's any particular area or issues like me to cover in light of a police contention there are several misstatements we were never given the opportunity for requires that in order to show cause hearing be held under the circumstances under five under section five twenty four you tell me what language in five twenty four the language in there that provides the court any discretion it states that discharge operates as an injunction against the command i don't know right now i brew i've read the statute myself i'm trying to find out if there's any language in the statute that says when the discharge order is violated the judge must proceed the certain way the judge must have in order to show cause so tell me if there is is there any language in the statute that says that that i've missed i would point the court to case law and in particular the ninth circuit case of  toes the bankruptcy court failed to follow that ninth circuit court case when it failed to issue the o s d when it failed to allow the appellant to conduct discovery when it f language does not give the court any wiggle room to how come we cannot just help me here i'm trying to figure out whether the statute says this or whether or not we've interpreted the statute to say i take it it's the proceed with it once it's filed well i think if you take a look at case law that i'm just stash such just took it as the statutes and i don't believe the stats i don't either so i'm like drawings i'm trying to figure out  because we've said so in some place or because the statute says so and i think your answer as we've said so correct your honor ok are there any other questions no thank you thank you very