seven counsel in chapter seven bankruptcy case your position he was never covered by a blanket bond no your honor he certainly was covered by a blanket bond however the bond was never filed with the court as section three hundred and twenty two a of the bankruptcy co requires no time to be precise your honor not in tell my client mr wisdom brought that fact of his attention in this litigation some three years after his appointment began and after he  by this bond not being in the in the form that you think it should have been well your honor to be clear the position is not that the bond was not in the form that it should have been but it was not filed with the court and in what's the practical consequences practical consequence your honor is that the trustee mr gugino never qualified for his appointment under the parameters that congress has set for qualifying the service it was a practical consequence of that that he took all of the actions that he took including everything including administering the bankruptcy estate liquidating life insurance policies etc without the proper authority it isn't that at the end of the day summit like that the full argument will get to isn't it form over substance respect we know you're on i don't believe so i think a analogy that might be particularly apt is if if your honour's were all taking the bench having been nominated but to serve by the president but not been confirmed by congress you're technically not authorized to ren 's the bond go to protection of rd parties as opposed to rendering his services no on board your honor the bond is intended to protect the united states government so the beneficiary of the bond is the united states trustee in hell was in this case was the united states government or the government was not harmed your honor however my client has claims that if they are proven would ultimately be a responsibility of the united states government to pay to the extent that the chapter seven trustee mr gugino was not able to pay the judgment with the bond existed right that's correct your hon strikes me as i gotcha argument pretty much like the old argument well your honor it may be a a technical argument but it is one that's important because essentially what could you know is asking this court to do is ignore the  statute i mean let's be perfectly clear he's pointing to a doctor and the defacto trustee doctrine that this court has never recognized and saying don't worry what the statute actually says it's a no harm no foul situation and respectfully your honor that's a very slippery slope because the minute this court disregards express requirements set by congress we're going down a very dark path and given that the language of the statute is so clear that this is a condition of qualifying for the appointment it simply cannot and should not be done now with respect to this de facto trustee doctrine as i said this court has never recognized it so in order to affirm this court would have to be making it law but what could you know fails to mention is that the defacto trustee doctrine is intended to be a workaround for minor good faith deviations from the statute and more particularly when a trustee fails to file a bond within the timeframe required which is within seven days of being appointed or  before beginning his or her official duties in the hypothetical bankruptcy case like yours were there is a bond but it's not been filed is it you can tune in something they did happen that not filed would prohibit anyone from a certain letting on the bond against the bond thank you and so these defacto trustee doctrine cases they deal with situations in which bonds are filed a week or two late we're talking about a matter of days and what's what's very significant about them is the fact that they underscore that everyone knows that these surety bonds do have to be filed and it's come up in the past where for various different reasons administrative problems the bond just happens to be filed a few days late and the courts in those cases rightly or wrongly have said well we're going to implement a workaround because this is just a very minor good faith deviation and respectfully your honor what we have in suggest that perhaps this was not a good faith deviation from the statute i would point what's that evidence well your honor mr my client mr wisdom asked the chapter seven trustee the u s trustees office the bankruptcy court clerk's office on several occasions to simply confirm yes or no has this bond been filed with the court and he never once got a straight answer and if you look at the supplemental excerpts of record that i supplied the record is very clear that he's asked he asked this question several times and never gets a straight answer united states trustees office and said please provide a copy of the filed bond when he didn't get a response he sent follow up letter saying please send a copy of the filed bond and to the extent that the bond was never filed please confirm that fact for me just say you're right mr wisdom the bond was never in fact filed and all he ever got was a copy of the bond that bore a filing stamp that was the day before it was sent to him so the record is very clear that this bond was filed in direct response to mr wisdom raising  about this and i realize it would be speculating but i can't conceive of a reason why there would be an intentional failure to do this by those you're accusing i mean what what what's in it for them  i guess the way i would ask the question to be clear your honor i don't mean to cast any aspersions i don't mean to suggest that it was intentional i think there's evidence from which that could potentially be inferred but we're guard less of the reason the fact of the matter is that the statute requires it and so people who are in mr wisdoms position of having to try and track down this bond and bring a cause of action against it really aren't able to do so and again the record is clear that mr wisdom was really put through the ringer to just determine whether this bond was in fact drastic and mr wisdom himself spelled out how drastic those implications are because what he argues in some of his pleadings in his motions is that because there was no bond allegedly filed that essentially every if mr does you know didn't have the authority to do what he did then his acts are void having a show oh well i think i probably appeared in bankruptcy court half a dozen to a dozen times in private practice and every single time i appeared in bankruptcy court and the bankruptcy judge was appointing a trustee and this four or five different bankruptcy judges every single time the bankruptcy judge said i appoint jane doe as trustee on this case pursuant to her bond that didn't happen here that did not happen here and i've appeared in bankruptcy court in idaho for a number of times and i can i'm sure more than i have and it doesn't and that's not something that i've seen and i doesn't mean it's never happened before but in this mr mr hughes you know here was who was was appointed by the u s trustee in can chose in a random and so perhaps the procedure is different in the courts but it comes in some point i assume this bankruptcy judge judge meyers formally appointed your client to his trustee either orally at a hearing or pursuant to an order that that's where that appointment would be if there if there is one and that and that appointment i don't believe was was challenged under three dollars to two dollars and in that setting there were there were allegations of illegality made in that setting that i don't think the bond issue was raised officially recognized thus far in the th circuit we are in a position where to adopt your view we just ignore we just ignoring a failure can can we do that i mean  simply be well it's a shame but that's the way it is and someday the de facto trustee doctrine will be in place and all will be well i'd answer that with with with two comments  if you look if you look at the text of eleven you know c three to today i don't know that that statute actually requires in every case that the bond be filed in that case and the statute simply says requires that  that a bond have been filed with the court in favor of the united states condition on the faithful performance of such official duties and so i don't i don't i don't know that i agree with the assumption here which is that the statute requires the filing of the actual bond in every single chapter seven in which a trustee appears and then and handles that that that that bankruptcy and so i don't know that that that the failure that is presented to this court is actually is actually a because you know it's clearly covered by the bond his name is mentioned in and in one of the certificates that's in the record and so the court did have that bond and so and again i don't know that there's been noncompliance with the statutes i don't know the statues clear and it certainly doesn't doesn't express lee say that it has to be filed in that individual bankruptcy in every in every case to prevent precisely the things that are happening here which is we've gone through a bankruptcy there's been a liquidation mr wisdom is the one who started the bankruptcy in order to shed his creditors thirteen  were parties he'd been involved in litigation in and had a few words against him so he shed he shed them and so now that he's shed his creditors he wants some kind of affirmative relief from my clients  and so and in order to do that he's using this technical argument based upon three to two a to undermine decisions he doesn't agree with an effort to get my client to pay him money now he's not saying he's not saying really let's start from the beginning and let's let's make my creditors whole he's apparently done them he simply saying that he wants affirmative relief in this case and wants a ruling that would undermine what the chapter seven trustee in idaho there's more than one have done for years which is operator this blanket bond without filing it in each individual so you're i take it for what you just said your position is even in this case if no bond had ever been  t and it applies here and so there's never been any question about about that bond being in place and being and being there for the protection of the united states not necessarily him and i was trying to think my way about why is it that the that the united states is is the bond is for the benefit united states i would assume they don't know that that is because once the chapter seven is filed that a state becomes the property essentially of the of the united states and ministered by the u s trustee and so if property is taken in violation of the code then the united states is the it is going to be the party from whom that property was for the benefit of someone like mr wisdom but but that does raise a question here one of whether mr wisdom really has any kind of standing to raise this particular objection because upon his for the benefit of the united states  i'm hearing you say that what happened in this case with respect to the filing of the bond or rather not filing the bond is the common practice in idaho it may be apparent from coarseness argument that it might be a good idea to change the practice and i know it may  none of that though changes the fact that mr de shino acted pursuit to authority given to him by the court acted under the statute doesn't change the fact that the th circuit has upheld everything that he did in the bankruptcy unfortunately for mr wisdom as this court noted in that appeal he may have been failed by his attorneys who are no longer parties to this case they were initially involved in this adversary action eyes only have a minute remaining so i'll be brief i do want to clear up one fundamental misunderstanding by opposing counsel opposing counsel has stated that our position is that the blanket ban needed to be filed in this individual case that is not our position our position is that the blanket ban needs to be filed once in the district of idaho this court is sitting today in the western district of washington our neighbor to the north the district of alaska has a separate case number assigned just for blanket the bonds are filed with the district of alaska clerk's office and have their own case number so that when someone wants to go find them they can do that that has never happened in the district of idaho to your point judge fletcher judge hawkins you asked whether there's any record of no record of an affirmative appointment having been made the bankruptcy courts position was that the filing of the case the generation of if i had a case and the fact that a trustee had been assigned was a formal appointment we respectfully