suppose there were an agreement between an attorney and a client that says the client will pay over to the attorney any amount awarded and collected as attorney's fees with that solve your problem would that make it within the statute as you interpret it if i understood the question currently just i don't think it does because as as you worded it i would assume a traditional fee shifting statute in which a little bit i'm suggesting that the agreement would say client promises to pay the attorney whatever amount of attorney's fees the court awards and that give enough personal liability on the client to support the actual damages claim in your view constitute actual damages and i think the reason why a contract or did in that manner would not quite get over the limitations set forth in the statute is that it doesn't at any point obligate the better to as a personal matter to pay the attorney's fees if if a contract worded in that manner in a just trying to think of if there would be any way in which the dead would be harming night and i don't think that's the case in contrast to us to a traditional contingency agreement where let's say just for the sake of argument there's an award of one hundred thousand dollars of damage is and then the  attorney is entitled to forty percent of that under a contingency fee that is pretty straightforward a damage that the borrower incurred rather than taking home one hundred thousand dollars they're only example sixty but in the in the example that you presented judge i think what would happen is the bar would keep the one hundred thousand dollars and then there would be there would be a fee practice motion motion practice and whatever additional amounts would be awarded would then be given to the attorney and i think and i think that distinction in the meantime testimony has that as they explained it they never had even a discussion you mentioned judge and express for an explicit agreement they didn't even have an implied agreement it was pretty understood the agreement that incidentally mister bergen has in his briefing does not dispute this the agreement to the extent that you can problem is that the moon would have to worry at all about it it would be it would be there a bankruptcy or at found your client violated an order and we know that because this is a consumer case there's a man day i'm going to run statute to give them certain money isn't there a run of five element here i mean if if the trustee for example doesn't have that mandate to pay but the trustee can go in and say hey let's was inappropriate i had to i had to retain counsel pardon does that different from looking at it giving you outside your your three  but in addition to that it's simply a different legal analysis and one of five context we're looking at content and there has to be a showing of actual notice and contempt whereas in the  argument and certainly for purposes of today we don't dispute that the court found would have been with respect to the automatic stay but i think there is a congressional statute that out of fide what the what congress intended to do in not aware of cases at the circuit level that have addressed this issue but the majority view on those among the bankruptcy cases bankruptcy court cases that we discussed in our briefing is that this is a distinction that does matter in those instances where the debtor has not had an expectation to be personally liable let me i'm going to ask you about about that if i think it seems to me that under your view debtors would have to make an agreement with a lawyer unconditionally agreeing to pay a reasonable fee to the lawyer for this litigation i think that's the implication of your position but everybody knows well in this case i think it's pretty clear that the moon's had no hope of actually performing back cream and right they had no way to afford a reasonable fee for this kind of case i suspect that's probably true for the vast majority of discharge chapter seven debtors so doesn't your position kind of require attorneys and clients to enter into agreements with kind of a nudge in a wink that they know is never going to be really performed unless there is an award of  fee the client stands to lose part of the recovery as a percentage of the fia ward so if for example i work for you because it means the attorneys fees are a trivial amount because usually the actual damages are a trivial amount not of it but in many cases  even if even they have been in this case even if we assume as was the case in this case that there are a significant amount in a contingency context the recovery comes out of the debtors pocket i think that's the distinction i'm trying to emphasize here is the court order a one hundred thousand dollars in compensatory damages as it did here and forty thousand dollars of that is taken out of the recoveries to pay the attorneys fees the debtor is forty one thousand dollars short of the award and that's why a what happens with this motion will never be worse off if if if mister burke gets paid or mister burke doesn't get paid at the court doesn't have to intervene to redress any damage on the part of the moon because they will never be at risk of having any part frightened by this and this i think is i guess i don't see why that's a good thing you know i i it's ok to award attorneys fees as long as it reduces the amount  as long as it makes sure the debtor will not actually recover their actual damages i mean i i just don't understand that i think the point is that attorney fees are necessary in the contingency context of the debt or can recover the entirety of what they of their damage whereas in the situation we have here because there was never a contingency or any other type of agreement the debtors are never going to be in a position where they're going to be worse off  reads it's different than your traditional attorney feet shifting statutes and this is simply the way the congress an act of the statute and so as a final thought we would i have to stop you because you're actually into your reserve moves would have to be me no matter what because it would frighten them away from doing anything fortunately well for them i did not do that i told them if we don't protect us and in terms of a contingency fee that would take away from their actual damages the courts if these are your actual damages now if they have to pay him over to the attorney that takes away from  interrelated you do not have to break down every little hour that was fans on but don't you have to do something i mean at least that's what they at least have to be an affirmative a determination  did you know that argument before the bankruptcy court i wasn't required to the bankruptcy court actually didn't even require me to set of promotion it said file an affidavit or declaration and you're billing hours and they can oppose it and you can respond but i did file it by motion because i figured it would be a dispute and that oral argument might be helpful unfortunately the and so i think it's so interrelated the fact that using a different statute wouldn't differentiate on the award now of course if this panel or the panel that her moon won would you agree with my argument that the stay continued and that you could pick a date for the d could have considered but didn't i don't think the fact that whether another tourney would take the case should have been dispositive of the issue of the court went through each of the other factors the lane payment and outlay of expenses then i don't think he abused his discretion the problem i have and why i asked for remained is i don't think those were considered i think they needed to be considered in the nd reason is overlap and two points are important there for emphasis today this is all in our graves st of all they're governed by different statutes that are different markedly different in the standards as they say set forth under three  k as we've argued there isn't an actual damages only under one of five days there's a civil contempt component that requires clear convincing evidence and that the bankruptcy court found that that was unmet as was  things on the discharging function that just did not factor in and so on that basis that was there thank you very much for your good arguments this matter will be think it's thank you