Legal Case Summary

The Heragumint Next in case 13935 Wellness International Network versus Sharif. Ms. Stage? Ms. Chief Justice, and may it please the Court. Stern v. Marshall Held that a bankruptcy judge may, consistent with Article 3, enter judgment in an action that stems from the bankruptcy itself. The claim it issue in this case meets that test. Wellness asked the bankruptcy court to decide the first and most fundamental question that arises in every bankruptcy case. What property became part of the debtor Sharif's bankruptcy estate under bankruptcy code section 541 on the day Mr. Sharif filed for bankruptcy? As this court recognized over 100 years ago in Mueller v. Nugent, it is essential that bankruptcy judges have that authority. As long as there have been bankruptcy laws, there have been debtors like Mr. Sharif who devised creative ways to keep property in their own possession and out of the hands of their trustees and creditors. Here, Mr. Sharif's case. Well, we've already held that a fraudulent conveyance against a non-creditor is an Article 3 violation, is a stern claim, essentially, or a non-curn claim. So why isn't this the same thing? Because this action is a good thing. I mean, it's not the same thing because he actually possesses this trust. It's in his name as trustee. Yes, I think. So it's a little bit, it's a lot different. But yes, but the allegations of the complaint were that Mr. Sharif owned the property and to the extent the trust existed, it should be ignored by virtue of the way he held the property. But that's the same in a fraudulent conveyance. It was his property and he was just trying to deny his other creditors the benefit of that money. So it's not quite that. Well, it's different, Your Honor, because in a fraudulent transfer claim, the debtor actually passes title over to someone under the definition of 548 or the year he's claiming that the best beneficiary has title. Yes, but that's the very dispute that the Court was asked to decide. Under Thompson versus Magnolia Petroleum, the issue is not what the debtor claims his title is, but whether he has actual possession. And so here, the assets that we have here are the condominium that he lives in and he's lived in for 20 years. A pharmacy business, he's a pharmacist that he's been operating for many years and that in the past he had reported as his business on his personal tax return. We have his own personal retirement account that somehow inexplicably ended up in the mother's grantor trust and then we have bank accounts that he owned

. And so the allegations of the complaint were that he really owned this and this charade that he put up in front of the bankruptcy court of saying this is owned in a trust. That was the dispute the Court had to consider. And a way, I think to think of it as differently from a fraudulent transfer action where you're against a true third party to whom title has passed, that chose an action, the intangible right to sue on the fraudulent transfer claim or is in stern the right to bring the breach of contract or tort claim. In these other cases, that asset, the right to sue, exists in the estate at the time of its creation. Who is the beneficiary of this trust, his sister, right? Well, that's what's claimed. That's what's claimed, yes. And so what would be the effect of a declaration by the bankruptcy court that that respondent was the alter ego that it was actually his property? What the sister, would the sister be bound by that judgment? Would the sister have to appear in the bankruptcy court as if she were a creditor? Well, yes, she would be bound because if we accept their characterization, the trustee through his litigation conduct binds the beneficiary under well established Illinois law, the law of, it's just basic trust law. But more importantly, she did appear in this action. She appeared through counsel, she too was subpoenaed, she too failed to produce the trust documents in response to requests. She was given notice of the case as a creditor and could have filed a claim. And there was a safety valve for her and she's in fact exercised her ability to have that safety valve. She could have filed a proof of claim in the case. With the court, the bankruptcy court have had the power to notify her or to subpoena her to come in as a party. Yes, because if she was a necessary party to the action, the normal rules of Federal civil procedure apply through the bankruptcy rules and she would have been required to be brought in, she's not a necessary party because she used to represent it. They created this construct of this trust. So he's even how I write about the basic facts. Creditor wants some money from debtor who's in bankruptcy. Creditor says, I look at your list of assets. It seems to me something's missing. I have a piece of paper here that you filed one year ago at the bank which says you have five million dollars more. Where is that on the list? He thinks about it and he says, oh, yeah, there was five million more. But that wasn't mine. That belonged to Saudi Arabia or that belonged to my cousin or, and so they say, let's prove it. And that's what we're issued. That's what's a issue. And the bankruptcy court, it happens here that the claim is not Saudi Arabia. The claim is not my cousin. The claim is that the five million dollars was a living trust of which there seems to be very little record. It belongs to his mother. But in principle, it's no different, is it? Your view. No, that's exactly what we have

. Simple claim. We'll hear from the other side, which we'll say it's very different. Right. And that is the basis of bankruptcy. If we think about what bankruptcy is and what it historically always has been, it's been about the in-rem jurisdiction of the court to take control of the debtor's property. And this case really is easy because the debtor is in possession of the property. The nature of this property, he's personally. Is that the only basis for distinguishing Stern? No, it's not, Your Honor. There's a number of things. What else? Okay. This has decided as a matter of Federal law section 541 determines what comes into the estate and what doesn't. It's not a- Whether there's a trust or not is not a question of Federal law, is it? But the question of whether something belongs to the bankruptcy of state is a Federal question even if state law informs the answer. This Court's precedent in other under other statutes. It's Law v. Segal last year. It's a question of Federal law even if state law provides the answer. Yes, Your Honor. And that's- The Court has interpreted Federal statutes dealing with property rights, the Paulson- And that wasn't the case in Stern? It was not the case in Stern. The claim there was- It was clear that the White Plies there what was in the estate is a question of Federal law. Even if state law provided the answer. The difference here would be if there had been a dispute between the debtor in Stern and her bankruptcy trustee over who got the right to go sue Pierce, the- the Sun in Law, that would have been this case. That would have been the 541 question. The chosen action is what exists in the estate at the time of its creation. And so that chose of action when you go out and you seek to go liquidate that, bring the lawsuit, that's the augmenting type claim that the Court has talked about it in its precedent in Stern and in Northern Pipeline. S.P. It's supposed Illinois law governs the issue of the trust. And it's supposed Illinois law says that when a- when it is held that the trustee is- that the trust is the trustee's alter ego, that the property does not become- that the- the- the property issue does not become the property of the trustee until there's a judicial declaration that that occurs. Well, I don't think that changes the analysis because ultimately in a bankruptcy case, if you're going to have a- So that would be a question of the status of this under Illinois law. I'm not a federal law, right? It would inform the decision, but ultimately whether the property comes into the estate or not, is determined under Section 541. And so the- the Court of Appeals who have addressed this issue and we list a number of those cases in the third footnote in our brief, all are very uniformed

. They are looking to state law in a variety of different contexts to figure out what the debtors' rights are in the property because that's the butiner decision of this Court. But ultimately when you make that final determination that it is property of the estate, you look to 541. And Congress would have intended that disputes over trust be part of that 541 determination by its inclusion of Section 541D, which talks about what title the debtor holds, whether it's legal title or equitable title, which is directly, you know, driven toward trust because that's when you have a division of title. And so it was intended that Federal law would cover that. I mean, I also think that, you know, a key difference between this and Stern in the form of claim that we have here is this is being brought against the debtor. This isn't being brought against a third party who's been hauled into bankruptcy court against their will. The debtor has chosen to file a bankruptcy knowing by virtue of the statute that he or she will be required to turn over their property to the bankruptcy trustee that there may be disputes over that. And there can be legitimate disputes. It doesn't necessarily just have to be a dishonest debtor like we would contend we have here. And that they're going to be in front of the bankruptcy judge in the first instance having those disputes determined. It's part of the federal scheme exactly what bankruptcy is supposed to accomplish, which is to get all of the debtor's property put into the bankruptcy estate for distribution to creditors. That's the central key point of every bankruptcy case. And if you don't do that, you lose your discharge like Mr. Sharif. It really is, this action really is the flip side of the denial of his discharge, which no one disputes the bankruptcy judge had the authority to decide. She couldn't decide if he should receive a discharge. If we didn't know what it was, he was supposed to be doing in the case in terms of the property that he had. And the two claims really overlap each other. They're the flip side of each other. That's why I think this is different than a cause of action against a third party, such as you had in Stern or Northern Pipeline or Grand Financier and the like. The consent question completely. Basically the argument that the SG and the, of you and the SG is that you need express consent. Or I guess the other side say you need express consent and they didn't give express consent. How do you get around that? Well, you're under we think that you don't need the court has held in roll that implied consent is permissible. The argument is based upon the bankruptcy rule, bankruptcy rule 7,012. And if you look at section 157C, it uses the term express consent and then just the term consent. In connection with section 157C2, which deals with the consent of a litigant to proceed to judgment on a non-corristered claim, it uses the word consent. So if we assume Congress meant to require express consent in 157E dealing with consenting to a jury trial, right? They must not have required express consent and then we have a rule that's going beyond what the statute provides. That's exactly the situation in roll that we have in the jury. We don't have to reach both these questions if we find one of them in your favor doing. That's correct

. If you don't find it to be a Stern claim, then consent would be. Which one is the better one? Which is the prettier question? Or the one that you think has more real world effect? Well, I think the first question has real world effect in the sense that if the court were to take away from bankruptcy judges, the power to litigate disputes with the debtor over what they possess comes in or out of the bankruptcy estate, you'd see a sea change in how cases were handled. Because that's the basic dispute you're going to have with the debtor. You're going to have three disputes with the debtor. It's going to be. Even if consent were sufficient to confer a jurisdiction, that's that's maybe just to continue justice, clear question. Or the bankruptcy courts more confused by question one or question two. I think there's a lot of confusion out there, Your Honor, and I think that certainly people are also concerned about the consent question. Because the situation that you have today is that both parties could consent and the bankruptcy judge could enter a judgment and then the party who loses can turn around and say, well, there's a question about whether I really consented or not or whether it was appropriate. So, Keth, are problems for the courts right now? Can I ask you said implied consent should be sufficient. How would you go about applying consent? When would there be implied consent on the basis of what? Well, I think you would have implied consent where you have here, you have a debtor who moved for some rejudgment. He asked the bankruptcy judge to enter judgment in his behalf. He never sought withdrawal of the reference. He never sought to ask the district court to take this matter away from him. We have, I think, the act of filing a bankruptcy puts you in front of the bankruptcy judge for at least the basic administration of the state property of the estate determinations, but I would submit for all matters involving the debtor because they all really do relate to that. It's basically property of the estate determinations whether property can be claimed as exempt and whether the debtor gets the discharge. That's what will involve 99 percent of litigation with the debtor. You've said I think that the consent has to be knowing an intelligent. Is there something that has to be told to the debtor to make the consent knowing an intelligent? Congress didn't require that here in Section 157, and you know, it's a maximum of the law that knowledge, you know, lack of knowledge of the law is no excuse. The statute puts you on notice that there is a list of proceedings, the core proceedings, that are like the old summary proceedings under the Bankruptcy Act, that the bankruptcy judge can decide to final judgment without the consent of the parties. And the statute also puts you on notice that if you don't agree with that, you can ask the bankruptcy judge to make a determination. You can ask the district court judge to make a determination. There is a problem, however, here, and that problem is that Stern wasn't decided until the appeal. So, on rebuttal, I want to talk about the American College's appellate waiver argument. Yes, Your Honor. Thank you. Thank you, Council. Mr. Ganon? Mr. Chief Justice, in May of Please the Court. We agree with petitioners on both questions presented with respect to the first question

. We don't think this is like a stern claim for the two reasons that have already been discussed. That is that the question of whether something is property of the State Intersection 541 stems from bankruptcy itself. But that's too broad an answer, because that would be true of fraudulent conveyances. Well, and it also does not involve an attempt to augment the estate. We're talking about a determination about a simple rule. If you have legal title to something, well, if you possess it physically or you have legal title to it, then the bankruptcy court can determine. Well, I think he has the trustee had legal title. He's just claiming that there is an equitable requirement to hold it for someone else. And under 541D, if it is true that the trustee only holds bear legal title, and then ultimately, the trust is not looked through because it's found not to exist or because it's found to be the alter ego of the trustee, then the equitable interest would not have come into the estate. I'm trying to get away from the augmentation argument because it's really difficult to apply in a case like this. Anything that's in the estate augments it or anything that comes. Well, I don't think that that's true. I think that when the court in Stern and Grand Fund on Sierra in Northern Pipeline was talking about the difference between questions that stem from the bankruptcy itself and are integral to the restructuring of the debtor credit or relationship they were talking about. The baseline that you have there with the estate is the property. Tell me what my rule is not simpler. Well, I think that if you physically possess it at the time, you declare bankruptcy or you have legal title to it, then the bankruptcy, then it's not a Stern claim. I suppose that that, that, that, that what this is fainting towards is the system that the parties have talked about that developed under the 1898 Act that ended up being a relatively reticulated system as described in its Owl Scott Kitsmiller case in which there are multiple categories in which the bankruptcy court would have jurisdiction to make these determinations. And we agree with petitioners that on facts like these where there was possession of the property, which we think indisputably the trustee had possession of the trust assets here, and that would be enough to give the bankruptcy judge the jurisdiction or the referee into the 1898 Act cases jurisdiction to determine who had title. And if you would look to history, pardon? And Stern, we said we would look to history. Portions of the Stern opinion looked to history, but I did not indicate that the historical precedence for this were going to be dispositive. And we don't think that that the rationale of Stern, Grand Financiera, and Northern Pipeline requires that as an article three matter, nor does the statute here because the statutory definition of property of the estate refers to property wherever located and by whomever held. It still ultimately has to be property of the debtor. And so if you're going to say that if it's if the debtor holds title to the property, that is the ultimate determination. So let's note that that's not a hypothetical. The sister holds title, but you're saying that it belonged to him. Well, I think that she holds legal title, but in fact, she, it's really his money. Well, I think if she held legal title and the property had already been transferred to her and that's what the bankruptcy judge determined, then it wouldn't be property of the estate. But we don't know the answer to the question of who holds title until the so-called Stern claim or non-Stern claim has already been decided. And so I think that that's the trouble with assuming that the answer to the title question or the ownership question because that is the answer to the property of the estate question. We can't wait to know the merits determination before we know whether it's a Stern claim, I think, is the problem with approaching it that way. But it is sensible to say that the question of whether something was property of the estate on day one such that it was the debtor's property because that's the determination here that that is not like a Stern claim

. It's not like a fraudulent conveyant or avoidable transfer where you're attempting to go out after the bankruptcy has already been initiated and trying to reduce a chosen action to judgment and liquidate it and therefore increase the size of the estate after the fact. Kounsel, on the consent question, is it under your theory, is there anything wrong with Congress adding a proviso to every Federal contract, saying the contractor hereby agrees to waive any Article III objections to having disputes with the government resolved by something we'll call the Congressional courts where the individuals serve for three years and Congress has a lot more sway over their decisions. Well, I suspect yes, if for no other reason than be, I mean, I mean, I'd even just say yes. Yes, why? I forget the question. If for no other reason than be. Yes, it's okay. Yes, that that would be a problem. I'm sorry, that that would not be permissible. I've forgotten the question. But the reason why this would not be. I thought it was an unforgettable question. I don't know. I promise you I won't forget it now. Yes, but yes, we have no bananas. The reason why this would be a problem is because of the structural concerns that you raised there, which we don't think are present here. When you said that those were congressional courts that would be more subjects to supervision by Congress, we do not think that that describes the bankruptcy system. We think the bankruptcy system is akin to the magistrate judge system, where this court has repeatedly recognized that the structural concerns that were an issue in shore were not sufficient to create a problem. There are two things here. There is both the consent of the parties, but also adequate judicial control, both in the aggregate over bankruptcy judges who were appointed by and removed by Article III judges, and also in every individual case because they don't get any bankruptcy case. There's judicial control in the sense that you have deferential appellate review. It is in one spot, but it still takes out of the Federal courts our constitutional birthright to decide cases and controversies under Article III. And I think it's hard for me to see how sort of vague notions of, oh, well, the judges are involved there somewhere. But I don't think that this is vague. We're talking about something different from just having appellate review after the fact. We're talking here about supervision of the bankruptcy judges, just like magistrate judges, by Article III judges. They're appointed by and removed by them. They don't ever get a case unless the court agrees to give it to them. And that seems to me the principal difference between your hypothetical congressional court scheme, which is that the parties are all not even making a voluntary choice because Congress is deming them to have made the choice. And then also, no court is able to say, I do not want the transfer to happen. And both of those things are not true here because the parties are able to make the choice and the courts are able to withdraw the reference. The parties are always able to ask for the courts to withdraw the reference

. This makes it just like the bankruptcy system with respect to whether it's a consentible constitutional violation. And so we don't think that this is like subject matter jurisdiction. And the court in Stern said that, that the division of authority between bankruptcy judges and district court judges in 157 is not a question of subject matter jurisdiction. And we think that is why it's one that's wavable. In youth of go back to your experience in your office, I just wanted to know it seems to me by memory, but I'm not positive. It is not totally unusual. And we do have the power to give two affirmative answers where either answer would be sufficient. That is, we could answer both questions. Now, as a representative of the solicitor general, is your reaction the same as mine? That there are cases where we've had two questions. And we say, one would be enough for the party to win. So would two, but we think it's important to answer both and we will. I do believe that the court has done that. I don't have any particular cases at the tip of my hand. Perhaps so. Perhaps it's made up of mistakes as well. That's what I wondered. Is there any reason that strikes you that that would be a mistake? I don't know anything in the Constitution or in any precedent of this court that prohibits it. So I think saying it as a mistake does not necessarily make it one. I think that that's something that would be in the discretion of the court. I do think that both of these questions are independently important. It is the case that petitioners can prevail and you could reverse the judgment of the court of appeals on either ground and without having to reach the other. I do think that until the case to be low, there probably was not confusion in the bankruptcy courts about whether a question is involving the definition of the property of the estate were stern claims. And so, but I do think that there is confusion about that just by virtue of the fact that this case is here. Could I ask you this quick question before your time runs out. If Federal bankruptcy rule 72B applies to stern claims because they are non-core, do you agree with the petitioner that the rule is invalid because it requires express consent and the statute does not refer to express consent? I don't think you have to get to the point of saying that the rule is invalid. That's not the way the court approached the case in Roel where the situation was, as my friend just said, exactly parallel. The statute did not require express consent, or it did in some places, but not in this one. And the same thing is true if you contrast 157C2 with 157E. The relevant statutory provision here does not require express consent. This Federal rule of civil procedure that was applicable in Roel well did, and the court nevertheless said that it was going to overlook the lack of an express waiver there because it found that there was sufficiently implied consent on the record. Do you agree that the start of the start of the outpriced claims? Excuse me

. Do you agree that implied consent, really, by filing the voluntary bankruptcy petition? Well, I think the court did not, I thought that that's what the petition was. When you said a voluntary bankruptcy petition? Yes. The court didn't grant served on that question. We do think that there's lots of other conduct here, but ultimately there's also the forfeiture after Stern itself was decided that we think would be adequate to decide that there was consent in this case. Mr. Gannon, I hit the protract your presentation here. I wasn't clear about what your answer to Justice Breyer covered. Did you say there are prior cases in which we have decided two constitutional questions? I said two different questions. Oh, I think that's a constitutional question. It's given that we're supposed to avoid the determination of constitutional question. I do realize that that is the general credential rule that the court applies, but I think that it normally does so in the context of, it would be upholding the statute in both regards. And therefore, I don't think that the normal concerns about constitutionality rise to the same level. Council facts, do you? You were saying that you wanted to talk about the importance of both questions. I think you got the first one out. What in your view was the importance of the second? Well, I do think that the court was not able to decide the consent question in executive benefits last term, and that there is a circuit split on it. It would be very useful to know that stern claims are the sorts of things to which parties consent or that those claims are wavable as they are in the mandatory judge context, which we think is parallel. But the government agrees with the petitioner that the first question, what goes into this estate, that if we had to choose between the two, which would you say is somewhat important? I think that it would be good to settle that for purposes of bankruptcy courts, but you would still have the unsettled consent question that has been kicking around ever since stern, and on which there is already a circuit split. In vice versa. Thank you, council. Mr. Hacker? Mr. Chief Justice, and may it please the court, we agree with what I understand the solicitor general's position this morning to be that the stern rule is relatively straightforward, which is that a common law claim that seeks to augment the estate with third-party property cannot be withdrawn by Congress from Article 3 jurisdiction. We also know that the alter ego claim asserted by wellness was a common law claim seeking to augment. Thanks, the question. Your client possessed something, and he says it really belonged to someone else. Don't you have to decide who it belongs to if there is no clear indication of it? And there might be a clear one, but it still begs the question. Right, two points in that, Your Honor. Let me start with where this court started, and where the law has been for decades, if not centuries, which is that the trustee of a trust possesses, if anything at all, no more than a bare legal title. And so this court said in the Hardensburg case, it said in Whiting Pools, and more importantly, maybe most importantly, there is no case anywhere to the contrary that when a trustee of a trust declares personal bankruptcy, the trust assets do not become part of the estate at the commencement of the bankruptcy. So what wellness had to do was establish through its common law alter ego claim that was to bring the assets of the trust into the estate. You're just saying that they didn't decide it correctly, but it's terribly easy to imagine a different debtor who goes into bankruptcy, and he lists item one, two, three, and four

. And the creditors come in and say, you know, it's awfully surprising. Four or five, six months ago, I have a similar list you gave to the National Bank, and you had ten items on it. What happened to six through ten? And the debtor replies, oh, they didn't really belong to me. Why not? Because state law gives it to somebody else, because state law is the source of all property law, and they say no, and now we have a dispute. So forget about the trust. Maybe I don't see why that's special. This is simply a question of whether a bankruptcy judge can litigate who owns items six through ten. And one party says state law gives them to my cousin Mary, and the other party says state law gives them right to you. Now, if we say no, inside with you on that one, what happens to the constitutional grant to Congress to make uniform laws of bankruptcy? I imagine it would still exist, but I can't imagine in what form. Now, you see a pretty hostile argument, so I would like to hear your reply. And I think the example is a good one, because I do think the trust is very important, because we do have decades of law on that. But the example is not problematic, because if in that situation, the trustee says I see some other bankruptcy trustee. I see some other property. And the debtor says that's not mine. I do think it's true that there wouldn't be a litigable claim there, unless the third party also asserted ownership to the property. But if that happened, if the third party says that's not the debtors, that's all mine. I've had it for years. That's my car, that's my boat, that's my house. Then I think it's absolutely clear that under that circumstance, the trustee could not extinguish the third party's rights, the bankruptcy court could not distinguish the third party's rights by itself. That's an article three claim, a classic private rights claim, where the bankruptcy trustee, the bankruptcy court, is reaching out to take the third party's property on the trustees. And what is the example of six through ten that you could find that wouldn't involve the issue you have described, because if there is a piece of property, and the debtor is saying it isn't mine, it must be somebody's, and by definition it's not the creditors. And so it must be somebody else's. And so that other person, if there is a dispute, will say it's mine. And therefore, isn't your answer to say to my question, too bad the bankruptcy trustee, cannot litigate. Who owns six through ten? So long as the third party... So the answer is yes. Yes, he can't do it. All right, then we're back to where are we with bankruptcy courts? When you have taken from them the power to litigate what I would think is the most fundamental thing imaginable. How much money does the debtor have in cases where that is in dispute? I don't think that's fundamental, because you have what you're talking about

. I mean, this court already crossed that bridge, I think, in Stern, and saying when you're augmenting the estate with third party property, you don't assume at the beginning of the Article III litigation that the other side has a claim. That's the whole point. The other reason is that the other side has not that point for thousands of years this has been the law. So can you think of any case? I find it rather interesting. I'm reading about Henry II, who in fact created many of the laws of England. So from the time of Henry II onward, is there a case that you have found somewhere which said that the bankruptcy trustee or the bankruptcy judge cannot litigate who owns property, the bank rupt or someone else in the state, in the estate. Well, a couple of years ago, all of the key sides of Stern, he made me. Stern is a case of a third party and a counterclaim, and there never would have been the money in the estate, had it not been for the fact that the debtor in fact asserted a claim, a counterclaim against a claim that was being made by an outsider to the estate. It's not too hard to distinguish Stern, but I am saying other than Stern, I don't even think Stern, let's go back to Henry II. Maybe you have so many, you'd have to send them on a list, but maybe not. You can look at all the cases cited in both sides brief. I think the rule is best stated in the Talbol Scott Kittsmiller, which is one word case, that says when there is a bona fide claim of adverse possession or excuse me of ownership by a third party, that can't be extinguished except through a plenary proceeding. And it's the exact same situation you're talking about, Your Honor. There's no difference, and there's decades of that law, and that law and that rule was never disputed. And so going back now to the trust proposition, I think it's important to make clear that wellness is a certainty. So what is a third party? You said it's just, it's no different. No different than a third party coming in and saying, that's my vote. Who is a third party here? The third. Go ahead. There is only the trustee. This is supposed to be his mother's trust, and his sister is supposed to be the beneficiary. So who is a third party? So there's a, well, three. There's the trust, but importantly, during her lifetime, so at Watar was the owner, the only owner of the beneficial interest in the trust assets. So she's the third party. So to the extent the bankruptcy court wants to decide for itself. I thought she was dead. When the bankruptcy was commenced, she was still alive, and she had the absence of revocable living trust. She has the absolute right to use all of those assets to revoke the trust. That's their her assets. If she had declared bankruptcy, those assets would have been in her estate. There's one way if she went she was alive. Did she say bankruptcy court? Wait a minute. This belongs to me. She was in Syria, I think, at the mature at what point, but the point is the trust itself wasn't existing document and wasn't existing entity. And I want to be clear about something. Wellness doesn't dispute that. I mean, exhibit 13 to Sheree's deposition was the trust amendment in 1996. It was an existing trust. In fact, their first primary argument, which pervades their reply brief, depends on the proposition that the trust was a real entity, because what they're saying is a version of what you were saying, just to sort of my R, which is that he had possession because he was the trustee of the trust. The possession only exists because he's the trustee of a trust. The trust assets aren't listed in his name. If they're not in the trust, there's no tenable theory that he is the on the face of the assets. That they start in the estate, they're going to have to be gotten somehow. So their theory is, well, he's the trustee of a trust and therefore he has sufficient possession. And our answer to that is simple. Not one case ever in the history of Western law that anybody has found says that trust assets go into the personal bankruptcy of state of a trustee, if and when the trustee declares bankruptcy, this court said the opposite in Hardensburg, it said the opposite in White and Pools, in saying that when you have only bare legal title, which is at most the only thing a trustee has, only bare legal title goes in and no other beneficial interests go into the estate. So then there's a second question, a second argument, which is that, well, because in 2002, not one year just a spire, but seven years before the bankruptcy, we have discovered these documents that suggest that he was treating the trust as a trustee. But in the case you decided that the court said who decides the question of whether there's bare legal title. You said the case very clearly, only bare legal title goes nothing. But who did it go on to say that the bankruptcy court cannot decide who has the bare, whether you have only bare legal title? But those cases were not about that proposition. This is about this threshold proposition that because he's the trustee of the trust and in possession of bare legal title, that's all we need to know. That's there. No, I do. So where you brought me so far. Yes. These cases say, but they say, you have to, you can't just grab it, you have to proceed under Section 23 and have a proceeding. But the proceeding, some kind of a proceeding, I don't know exactly what that kind is, you probably do, but that doesn't mean the trustee doesn't get it. I mean, it's the trustee who litigates it out. It's the trustee who decides. But I don't know what it's Section 20. In the older cases, the rule that would apply Justice Kennedy would be the Talbor Scott-Kitts Miller rule you had to have a plenary proceeding to go get it. A plenary proceeding

. Did she say bankruptcy court? Wait a minute. This belongs to me. She was in Syria, I think, at the mature at what point, but the point is the trust itself wasn't existing document and wasn't existing entity. And I want to be clear about something. Wellness doesn't dispute that. I mean, exhibit 13 to Sheree's deposition was the trust amendment in 1996. It was an existing trust. In fact, their first primary argument, which pervades their reply brief, depends on the proposition that the trust was a real entity, because what they're saying is a version of what you were saying, just to sort of my R, which is that he had possession because he was the trustee of the trust. The possession only exists because he's the trustee of a trust. The trust assets aren't listed in his name. If they're not in the trust, there's no tenable theory that he is the on the face of the assets. That they start in the estate, they're going to have to be gotten somehow. So their theory is, well, he's the trustee of a trust and therefore he has sufficient possession. And our answer to that is simple. Not one case ever in the history of Western law that anybody has found says that trust assets go into the personal bankruptcy of state of a trustee, if and when the trustee declares bankruptcy, this court said the opposite in Hardensburg, it said the opposite in White and Pools, in saying that when you have only bare legal title, which is at most the only thing a trustee has, only bare legal title goes in and no other beneficial interests go into the estate. So then there's a second question, a second argument, which is that, well, because in 2002, not one year just a spire, but seven years before the bankruptcy, we have discovered these documents that suggest that he was treating the trust as a trustee. But in the case you decided that the court said who decides the question of whether there's bare legal title. You said the case very clearly, only bare legal title goes nothing. But who did it go on to say that the bankruptcy court cannot decide who has the bare, whether you have only bare legal title? But those cases were not about that proposition. This is about this threshold proposition that because he's the trustee of the trust and in possession of bare legal title, that's all we need to know. That's there. No, I do. So where you brought me so far. Yes. These cases say, but they say, you have to, you can't just grab it, you have to proceed under Section 23 and have a proceeding. But the proceeding, some kind of a proceeding, I don't know exactly what that kind is, you probably do, but that doesn't mean the trustee doesn't get it. I mean, it's the trustee who litigates it out. It's the trustee who decides. But I don't know what it's Section 20. In the older cases, the rule that would apply Justice Kennedy would be the Talbor Scott-Kitts Miller rule you had to have a plenary proceeding to go get it. A plenary proceeding. Where is the order to set a place? That would have been, it's sort of the equivalent now, the parties are treating it, I think, not incorrectly as the equivalent now of an article three proceeding. This would have to be the day before the bankruptcy judge. Most of these cases, the time remember, the district court was the bankruptcy court and the question was whether it's the exercise of some regress, diction versus a plenary article three proceeding. I see the problem. A plenary proceeding. Now it would be an adversary proceeding that would have to be determined finally by the federal court. So, but I want to get to the second point because it's important, while this doesn't just rest on the proposition that just because of the trust, he's the trustee, the trust assets are part of the estate, which I think is completely unsupportable, they go on to say because seven years earlier, as trustee, he treated them as the trust assets as his own. Therefore, we should disregard the trust. That argument, I think, as I think Justice Sotomayor pointed out, is functionally indistinguishable from a fraudulent transfer claim, because they're saying based on his alleged misuse of trust assets, at some point in the now distant past, we should treat them as part of the estate. We should disregard the trust, which is just like a fraudulent transfer, which it says because of something the debtor did before transferring the assets, we should disregard the transfer and treat them as part of the estate. In that respect, it's indistinguishable, and it is in that respect in the same way. Just augment the estate. Just to clarify the record, I asked the question whether they were or weren't. Fair enough, and I will try to answer it, which is I think they are in that respect indistinguishable, and then if you follow from what all of the lower courts have said, that a fraudulent transfer action is a stern claim. Well, we've said that too. I can't say that. The hell that is an article, basically an article three claim in Grand Fennets in its Sierra. So I think for all of these reasons, it is quite clear that the action to bring these claims into the estate is a common law action seeking to augment the estate with somebody else's property, property that so-and-water owned during her life, and that Raghda Sharifa owned upon. So give me examples. The suggested rule that I had for the solicitor general, which he would like to broader one. But if at the time you have legal title two or in physical possession of something, then it's not a stern claim, not an article three claim. Because that is the quintessential question that bankruptcy judges decide are the things that you possess either by title or by constructive holding. I think there's two problems with that analysis. First is that all the trustee has is bare legal titles, and that of law. Does not have any property interest, which is what the current bankruptcy code focuses on. What are the debtors interest in property, and it's the trustee of a trust, does not have any interest, beneficial or legal interest in the assets, it's only bare legal title. So to get more interest as part of the estate, you have to have some common law way to do that, some claim for doing that, and a classic claim is an alter ego claim, if that's what you think. Because of something the trustee did, then. But you could say that's always going to be the case that you need an article three proceeding. Whenever the bankruptcy trustee determines that something belongs to the debtor and is in the bankruptcy estate, and some other private party says no, it belongs to me. That always has to be litigated in an article three court

. Where is the order to set a place? That would have been, it's sort of the equivalent now, the parties are treating it, I think, not incorrectly as the equivalent now of an article three proceeding. This would have to be the day before the bankruptcy judge. Most of these cases, the time remember, the district court was the bankruptcy court and the question was whether it's the exercise of some regress, diction versus a plenary article three proceeding. I see the problem. A plenary proceeding. Now it would be an adversary proceeding that would have to be determined finally by the federal court. So, but I want to get to the second point because it's important, while this doesn't just rest on the proposition that just because of the trust, he's the trustee, the trust assets are part of the estate, which I think is completely unsupportable, they go on to say because seven years earlier, as trustee, he treated them as the trust assets as his own. Therefore, we should disregard the trust. That argument, I think, as I think Justice Sotomayor pointed out, is functionally indistinguishable from a fraudulent transfer claim, because they're saying based on his alleged misuse of trust assets, at some point in the now distant past, we should treat them as part of the estate. We should disregard the trust, which is just like a fraudulent transfer, which it says because of something the debtor did before transferring the assets, we should disregard the transfer and treat them as part of the estate. In that respect, it's indistinguishable, and it is in that respect in the same way. Just augment the estate. Just to clarify the record, I asked the question whether they were or weren't. Fair enough, and I will try to answer it, which is I think they are in that respect indistinguishable, and then if you follow from what all of the lower courts have said, that a fraudulent transfer action is a stern claim. Well, we've said that too. I can't say that. The hell that is an article, basically an article three claim in Grand Fennets in its Sierra. So I think for all of these reasons, it is quite clear that the action to bring these claims into the estate is a common law action seeking to augment the estate with somebody else's property, property that so-and-water owned during her life, and that Raghda Sharifa owned upon. So give me examples. The suggested rule that I had for the solicitor general, which he would like to broader one. But if at the time you have legal title two or in physical possession of something, then it's not a stern claim, not an article three claim. Because that is the quintessential question that bankruptcy judges decide are the things that you possess either by title or by constructive holding. I think there's two problems with that analysis. First is that all the trustee has is bare legal titles, and that of law. Does not have any property interest, which is what the current bankruptcy code focuses on. What are the debtors interest in property, and it's the trustee of a trust, does not have any interest, beneficial or legal interest in the assets, it's only bare legal title. So to get more interest as part of the estate, you have to have some common law way to do that, some claim for doing that, and a classic claim is an alter ego claim, if that's what you think. Because of something the trustee did, then. But you could say that's always going to be the case that you need an article three proceeding. Whenever the bankruptcy trustee determines that something belongs to the debtor and is in the bankruptcy estate, and some other private party says no, it belongs to me. That always has to be litigated in an article three court. I don't think this court needs to decide that that's not quite the question here because the property interests from the state are outside the estate. I do that what you're arguing. I would not be surprised if this court were to hold one day that if a third party has a claim to property, comes into court and says, that's my house. I know that debtor says it is, that says it's his, and the trustee thinks it is, that's my house. That that person is entitled to an article three adjudication for that. That's right. That's right. Because it's interesting. I mean, I've read the page you have there now at the cases, and I see you can, the distinction will drive you towards that, not 100 percent because there'll be some instances of colorable title and so forth, not 100 percent, but 99 percent, item 6 through 10 go to a different court. But what, in the Constitution question, the deepest one to me, is we do have a constitutional provisions specifically giving to Congress the authority to create a uniform system of bankruptcy courts which have served our economy well, I think. That's what I read. It made us richer. And on the other hand, we do have the question, as you point out, that this is determining a title where there are two people under state law, contesting it, and so which prevails. And until I think, Stern, it would have been Congress's delegation, maybe. And what is the strongest argument for not giving weight, these are sort of like administrative agencies defining, you know, deciding things that never had everybody done before? What's the strongest argument? No, don't do it. It might gut the bankruptcy court, but don't do it. Or maybe you want to say it won't gut. That's what my answer was. I don't think it will gut the bankruptcy court. We think this is just a straightforward application of where we already are with Stern. Yeah, yeah, but I agree with you to this extent. It's either Stern marches forward or it's, I'd say, steps in place. And I don't think we're pushing Stern forward. I do think we're just applying Stern, but I also want to address your point about uniform bankruptcy court. I think the fact that this court has long said and understood, and the lower courts have accepted that bankruptcy law takes state law and property rights as defined by state law, as they find them, that's all we're talking about here. To the extent there is a state law property dispute between a third party in the dead or slash bankruptcy trustee, that doesn't change the uniformity of the bankruptcy code. And I suppose the Constitutional provision authorizing Congress to establish a uniform law of bankruptcy does not authorize Congress to establish bankruptcy courts that can decide questions which would normally be decided by Article 3 courts. That's clearly right. You could establish bankruptcy law, but it's going to be an Article 3 question, the extent to which the bankruptcy courts can exercise judicial power. I would answer one more point on Justice Sotomayor's question. I had two responses

. I don't think this court needs to decide that that's not quite the question here because the property interests from the state are outside the estate. I do that what you're arguing. I would not be surprised if this court were to hold one day that if a third party has a claim to property, comes into court and says, that's my house. I know that debtor says it is, that says it's his, and the trustee thinks it is, that's my house. That that person is entitled to an article three adjudication for that. That's right. That's right. Because it's interesting. I mean, I've read the page you have there now at the cases, and I see you can, the distinction will drive you towards that, not 100 percent because there'll be some instances of colorable title and so forth, not 100 percent, but 99 percent, item 6 through 10 go to a different court. But what, in the Constitution question, the deepest one to me, is we do have a constitutional provisions specifically giving to Congress the authority to create a uniform system of bankruptcy courts which have served our economy well, I think. That's what I read. It made us richer. And on the other hand, we do have the question, as you point out, that this is determining a title where there are two people under state law, contesting it, and so which prevails. And until I think, Stern, it would have been Congress's delegation, maybe. And what is the strongest argument for not giving weight, these are sort of like administrative agencies defining, you know, deciding things that never had everybody done before? What's the strongest argument? No, don't do it. It might gut the bankruptcy court, but don't do it. Or maybe you want to say it won't gut. That's what my answer was. I don't think it will gut the bankruptcy court. We think this is just a straightforward application of where we already are with Stern. Yeah, yeah, but I agree with you to this extent. It's either Stern marches forward or it's, I'd say, steps in place. And I don't think we're pushing Stern forward. I do think we're just applying Stern, but I also want to address your point about uniform bankruptcy court. I think the fact that this court has long said and understood, and the lower courts have accepted that bankruptcy law takes state law and property rights as defined by state law, as they find them, that's all we're talking about here. To the extent there is a state law property dispute between a third party in the dead or slash bankruptcy trustee, that doesn't change the uniformity of the bankruptcy code. And I suppose the Constitutional provision authorizing Congress to establish a uniform law of bankruptcy does not authorize Congress to establish bankruptcy courts that can decide questions which would normally be decided by Article 3 courts. That's clearly right. You could establish bankruptcy law, but it's going to be an Article 3 question, the extent to which the bankruptcy courts can exercise judicial power. I would answer one more point on Justice Sotomayor's question. I had two responses. The second one was that physical possession is not a great test, as this case shows, Sharif as trustee didn't physically possess anything. If anybody did, it was the banks where the trust assets were. So you can't think about it in terms of physical possession. Well, let's not some we receive with this question one more step. That every day of the week, administrative agencies change state law. Every day of the week, they change state law even involving property. And in such a case, the question is whether has this administrative agency under authority of Congress changed state law affecting people's property rights in a way that deprives them of due process of law? Have they gotten fair procedure? And so is a possible answer to your problem? If the procedures of the bankruptcy court are fair when they litigate these questions of property right, the fact that they do affect state law and take property among persons switching it is not forbidden by the Constitution where it indeed is authorized as part the uniform system of bankruptcy law. I think due process viewed that way is not sufficient. I think again, this court answered that question in Stern. There wasn't a claim that there wasn't going to be due process for the disposition of the property rights there. The problem was that the bankruptcy court was exercising the judicial power of the United States in entering a final judgment. And if I can turn to that argument, I will. Stern itself is based on the structural separation of powers' concerns that private rights of this kind are exclusively committed to by the Constitution to Article 3. It's about the exercise of judicial power, which entails the implementation and enforcement of judgments of the United States that are entitled to full faith in credit by courts both in the United States and elsewhere pursuant to treaties. They are presidential. They can be law, they are law of the case in what can be very complicated cases that stretch around different courts and go on for years. That's- The argument you're raising now, any different as applied to magistrate judges? If we rule in your favor in this case, are we calling into question or acceptance of magistrate judge positions? Well, a couple of points. First of all, respect to magistrate judges. It's only with respect to final adjudications. Magistrate judges could still- So your answer is yes, because you can do an expressed consent, you can do reports and recommendations. As to final adjudications of private rights matters, magistrate judges could still do something, could still litigate and resolve public rights, whatever those kinds of rights and matters are. But I do think it would be difficult after this case to say that their magistrate can exercise judicial power of the United States to enter a final judgment based solely on consent. I think this court answered that question in sure effectively. Sure would have been an easy case, an incredibly easy case if consent alone were enough. Because that was an issue in sure, and the parties there did consent. But the court didn't stop with that one sentence. The party is consented, that's all we need to know. The court went on to do an elaborate analysis of the structural concerns involved and why there were no structural concerns such that the consent was sufficient. And when you boil it all down, basically what Schor said, which is what I think the court recognized in Stern, was that the structural concerns exist when you're talking about the adjudication of a private. I agree, but we didn't say that you couldn't consent in short. I understand that

. The second one was that physical possession is not a great test, as this case shows, Sharif as trustee didn't physically possess anything. If anybody did, it was the banks where the trust assets were. So you can't think about it in terms of physical possession. Well, let's not some we receive with this question one more step. That every day of the week, administrative agencies change state law. Every day of the week, they change state law even involving property. And in such a case, the question is whether has this administrative agency under authority of Congress changed state law affecting people's property rights in a way that deprives them of due process of law? Have they gotten fair procedure? And so is a possible answer to your problem? If the procedures of the bankruptcy court are fair when they litigate these questions of property right, the fact that they do affect state law and take property among persons switching it is not forbidden by the Constitution where it indeed is authorized as part the uniform system of bankruptcy law. I think due process viewed that way is not sufficient. I think again, this court answered that question in Stern. There wasn't a claim that there wasn't going to be due process for the disposition of the property rights there. The problem was that the bankruptcy court was exercising the judicial power of the United States in entering a final judgment. And if I can turn to that argument, I will. Stern itself is based on the structural separation of powers' concerns that private rights of this kind are exclusively committed to by the Constitution to Article 3. It's about the exercise of judicial power, which entails the implementation and enforcement of judgments of the United States that are entitled to full faith in credit by courts both in the United States and elsewhere pursuant to treaties. They are presidential. They can be law, they are law of the case in what can be very complicated cases that stretch around different courts and go on for years. That's- The argument you're raising now, any different as applied to magistrate judges? If we rule in your favor in this case, are we calling into question or acceptance of magistrate judge positions? Well, a couple of points. First of all, respect to magistrate judges. It's only with respect to final adjudications. Magistrate judges could still- So your answer is yes, because you can do an expressed consent, you can do reports and recommendations. As to final adjudications of private rights matters, magistrate judges could still do something, could still litigate and resolve public rights, whatever those kinds of rights and matters are. But I do think it would be difficult after this case to say that their magistrate can exercise judicial power of the United States to enter a final judgment based solely on consent. I think this court answered that question in sure effectively. Sure would have been an easy case, an incredibly easy case if consent alone were enough. Because that was an issue in sure, and the parties there did consent. But the court didn't stop with that one sentence. The party is consented, that's all we need to know. The court went on to do an elaborate analysis of the structural concerns involved and why there were no structural concerns such that the consent was sufficient. And when you boil it all down, basically what Schor said, which is what I think the court recognized in Stern, was that the structural concerns exist when you're talking about the adjudication of a private. I agree, but we didn't say that you couldn't consent in short. I understand that. I'm just saying it would have been a very easy case if consent were enough. And the court nevertheless went on to say consent is enough here because we're talking about when it makes the arbitration. And there you can give up. I understand that. And arbitration is fundamentally different. Arbitration is not the exercise of the judicial power of the United States. An arbitrator doesn't issue a judgment. It's not entitled to full faith and credit. It's a fundamentally different kind of exercise of authority. Well, but you do something which has to be enforced by a court except in very extraordinary circumstances. There's much less supervision over the arbitration system than there is over a typical bankruptcy court. Right, but the decision by the parties to go to an arbitrator, which by the way is their own decision, what arbitrator they choose is their own choice. The arbitrator is not controlled. The salary of the arbitrator is not controlled by Congress. The tenure of the arbitrator is not controlled by Congress. And when the FFA, the FAA, is not very livery. All those things make it worse. You know that this is a proceeding that's totally divorced from any kind of control by anybody. And yet, federal courts under the Arbitration Act simply have to rubber stamp it and say it's valid, except an extremely unusual circumstances. But that's pursuant to Congress's article One Power to say here's a type of contract that we're going to say is enforceable under a particular situation. That's all arbitration is. It's just contract laws. Right. I mean, they're just enforcing the party's contracts. And the party agrees that this is the party's contract. I mean, the entire question here is that the parties are consenting to go to bankruptcy court. And the question is, will that consent be sufficient in the same way that it is in the arbitration system? I understand, but it adds the element that what you're consenting to by hypothesis is the exercise of judicial power. By the entry of a judgment that will be given for faith and credit. The entry of a judgment by an entity to the subject. No, that's what happens in arbitration. You're agreeing to the entry of a judgment of an award

. I'm just saying it would have been a very easy case if consent were enough. And the court nevertheless went on to say consent is enough here because we're talking about when it makes the arbitration. And there you can give up. I understand that. And arbitration is fundamentally different. Arbitration is not the exercise of the judicial power of the United States. An arbitrator doesn't issue a judgment. It's not entitled to full faith and credit. It's a fundamentally different kind of exercise of authority. Well, but you do something which has to be enforced by a court except in very extraordinary circumstances. There's much less supervision over the arbitration system than there is over a typical bankruptcy court. Right, but the decision by the parties to go to an arbitrator, which by the way is their own decision, what arbitrator they choose is their own choice. The arbitrator is not controlled. The salary of the arbitrator is not controlled by Congress. The tenure of the arbitrator is not controlled by Congress. And when the FFA, the FAA, is not very livery. All those things make it worse. You know that this is a proceeding that's totally divorced from any kind of control by anybody. And yet, federal courts under the Arbitration Act simply have to rubber stamp it and say it's valid, except an extremely unusual circumstances. But that's pursuant to Congress's article One Power to say here's a type of contract that we're going to say is enforceable under a particular situation. That's all arbitration is. It's just contract laws. Right. I mean, they're just enforcing the party's contracts. And the party agrees that this is the party's contract. I mean, the entire question here is that the parties are consenting to go to bankruptcy court. And the question is, will that consent be sufficient in the same way that it is in the arbitration system? I understand, but it adds the element that what you're consenting to by hypothesis is the exercise of judicial power. By the entry of a judgment that will be given for faith and credit. The entry of a judgment by an entity to the subject. No, that's what happens in arbitration. You're agreeing to the entry of a judgment of an award. And perhaps not even because you don't even put that into the contract. Congress is saying we're going to do it anyway. One of the things you're not consenting to the exercise of the judicial power, to the delusion of the article three courts authority, misuse judgments that are presidential. Please, I'm sorry. Well, that's all I was going to say. You know, I understand that formalism matters in many contexts, but the fact that the arbitrator himself doesn't issue the judgment. And instead, you have to take it across the street and the federal court has to issue the judgment. Basically, on the arbitrator's say so, again, seems to me, I mean, the arbitrator case seems to me much more threatening to the integrity of the Federal Judicial System than a system of bankruptcy courts, which are from the very beginning all the way through supervised by district courts. Well, I mean, the key difference, though, I think, is that, as I said, bankruptcy courts are exercising judicial power. Arbitrators aren't. And then when the district court, in an arbitration proceeding, all the district court is doing is enforcing a judgment, excuse me, enforcing an arbitration award, a contractual choice, pursuant to a congressional judgment that says, here are the rules, the decision rule, for enforcing this particular type of contract. That's an article one issue, it's within Congress, it's article one power, to constrain, to establish the decision rule that the part, the entity exercising judicial power will apply. In this situation, the party exercising, the entity exercising the judicial power is a non-article three court. It says, if you said, you changed the FAA and added another paragraph to say, and arbitrators awards are exercises of their final judgments of the United States, entitled to full faith and credit, subject to a palette review by the, by a palette courts. I think the Court is just talking about the forfeited argument on appeal. The argument that consent can be presumed from your forfeiture of the argument on appeal. And I'm glad you put it that way, Your Honor, because I think they're different points. The law clearly requires consent, and I think everybody agrees it requires knowing and voluntary consent, that you have to have at least that, the rule, which we think is applicable, and agree with the American College of Bankruptcy, that the rules writers in this court in implementing the rule required express consent. I don't think there's a credible argument here that there was express consent. And I think this Court ought to adopt express consent as the requirement and hold that there was not express consent here, precisely for the constitutional avoidance reasons that Justice Scalia mentioned earlier, to avoid getting into the whole discussion we just had. Because if there's insufficient consent here, then we don't need to decide the circumstances under which consent is. But this is not a specific. It's not a species of consent. It's different from consent. And I'm sorry, I delay getting to Justice Haudenosaure's question. The reason there's no forfeiture here among the reasons is that this was a problem of appellate jurisdiction. There was no appellate jurisdiction here because there was no final judgment in the bankruptcy court. If our first argument was right, then the bankruptcy court lacked authority to issue a final judgment. So when we went up to appeal, quote, unquote, in the district court, there was no, it wasn't permissible for that court to exercise appellate jurisdiction. You think a final judgment has to be a valid final judgment in order for there to be an appeal? I think it has to be. And it can be invalid

. And perhaps not even because you don't even put that into the contract. Congress is saying we're going to do it anyway. One of the things you're not consenting to the exercise of the judicial power, to the delusion of the article three courts authority, misuse judgments that are presidential. Please, I'm sorry. Well, that's all I was going to say. You know, I understand that formalism matters in many contexts, but the fact that the arbitrator himself doesn't issue the judgment. And instead, you have to take it across the street and the federal court has to issue the judgment. Basically, on the arbitrator's say so, again, seems to me, I mean, the arbitrator case seems to me much more threatening to the integrity of the Federal Judicial System than a system of bankruptcy courts, which are from the very beginning all the way through supervised by district courts. Well, I mean, the key difference, though, I think, is that, as I said, bankruptcy courts are exercising judicial power. Arbitrators aren't. And then when the district court, in an arbitration proceeding, all the district court is doing is enforcing a judgment, excuse me, enforcing an arbitration award, a contractual choice, pursuant to a congressional judgment that says, here are the rules, the decision rule, for enforcing this particular type of contract. That's an article one issue, it's within Congress, it's article one power, to constrain, to establish the decision rule that the part, the entity exercising judicial power will apply. In this situation, the party exercising, the entity exercising the judicial power is a non-article three court. It says, if you said, you changed the FAA and added another paragraph to say, and arbitrators awards are exercises of their final judgments of the United States, entitled to full faith and credit, subject to a palette review by the, by a palette courts. I think the Court is just talking about the forfeited argument on appeal. The argument that consent can be presumed from your forfeiture of the argument on appeal. And I'm glad you put it that way, Your Honor, because I think they're different points. The law clearly requires consent, and I think everybody agrees it requires knowing and voluntary consent, that you have to have at least that, the rule, which we think is applicable, and agree with the American College of Bankruptcy, that the rules writers in this court in implementing the rule required express consent. I don't think there's a credible argument here that there was express consent. And I think this Court ought to adopt express consent as the requirement and hold that there was not express consent here, precisely for the constitutional avoidance reasons that Justice Scalia mentioned earlier, to avoid getting into the whole discussion we just had. Because if there's insufficient consent here, then we don't need to decide the circumstances under which consent is. But this is not a specific. It's not a species of consent. It's different from consent. And I'm sorry, I delay getting to Justice Haudenosaure's question. The reason there's no forfeiture here among the reasons is that this was a problem of appellate jurisdiction. There was no appellate jurisdiction here because there was no final judgment in the bankruptcy court. If our first argument was right, then the bankruptcy court lacked authority to issue a final judgment. So when we went up to appeal, quote, unquote, in the district court, there was no, it wasn't permissible for that court to exercise appellate jurisdiction. You think a final judgment has to be a valid final judgment in order for there to be an appeal? I think it has to be. And it can be invalid. Well, it's not a question of being a defect. I think the problem here is there is an absolute lack of any authority to enter a final judgment. There wasn't something from which the district court had any authority to exercise appellate jurisdiction. That was the problem. It wasn't just a court-induced judgment against you. And you say that court never had jurisdiction to enter that judgment. You can't take an appeal because there wasn't a final judgment because the court below lacked jurisdiction. That's the argument. Well, the argument would be, if at any point on appeal, I can raise the problem that the court, to which I'm appealing, lacks appellate jurisdiction, lacks jurisdiction to resolve the case. That's the kind of non-wavable problem. And it's something that cannot be waived, also can't be forfeited. And so that's the reason that there's no forfeiture problem here. Beyond that, it's quite clear that Mr. Sharif made every effort to preserve the issue to the extent he became aware of it. It was only six weeks after Stern was decided that he filed his opening brief, did not cite Stern. That's true. But only a month or two later, his sister, Raghda Sharif, files a motion to withdraw the reference. And then he immediately, essentially, his lawyer, realized what's happened. As soon as he's aware of the Stern argument, as soon as the seven circuit issues its decision in Ortiz actually applying Stern, then he properly raises this issue. He's not sandbagging. There's no gamesmanship here. As soon as it's clear that he understands that his consent was required before what happened to him could permissibly happen, he demonstrated that he did not consent to the exercise of that jurisdiction. Now, of course, our primary submission is the Bank of C.C. Court never had that jurisdiction. And we think that's a correct argument, but to avoid that argument, we think the simpler approach for this Court is to say that express consent was required, it wasn't satisfied, or that if implied consent was sufficient to apply what this Court applied in the role case in finding implied consent, which clearly was not applicable here. In role, the Court found implied consent only because, quote, the litigant or counsel was made aware of the need for consent, didn't happen here, and the right to refuse it also didn't happen here, and still voluntarily appear to try the case. Further, the Court emphasized in role, the party later actually did consent in writing. That also didn't happen here. So none of the factors that created implied consent in role were sufficient, and for that reason, we think the Court should affirm the judgment below. Thank you, counsel

. Well, it's not a question of being a defect. I think the problem here is there is an absolute lack of any authority to enter a final judgment. There wasn't something from which the district court had any authority to exercise appellate jurisdiction. That was the problem. It wasn't just a court-induced judgment against you. And you say that court never had jurisdiction to enter that judgment. You can't take an appeal because there wasn't a final judgment because the court below lacked jurisdiction. That's the argument. Well, the argument would be, if at any point on appeal, I can raise the problem that the court, to which I'm appealing, lacks appellate jurisdiction, lacks jurisdiction to resolve the case. That's the kind of non-wavable problem. And it's something that cannot be waived, also can't be forfeited. And so that's the reason that there's no forfeiture problem here. Beyond that, it's quite clear that Mr. Sharif made every effort to preserve the issue to the extent he became aware of it. It was only six weeks after Stern was decided that he filed his opening brief, did not cite Stern. That's true. But only a month or two later, his sister, Raghda Sharif, files a motion to withdraw the reference. And then he immediately, essentially, his lawyer, realized what's happened. As soon as he's aware of the Stern argument, as soon as the seven circuit issues its decision in Ortiz actually applying Stern, then he properly raises this issue. He's not sandbagging. There's no gamesmanship here. As soon as it's clear that he understands that his consent was required before what happened to him could permissibly happen, he demonstrated that he did not consent to the exercise of that jurisdiction. Now, of course, our primary submission is the Bank of C.C. Court never had that jurisdiction. And we think that's a correct argument, but to avoid that argument, we think the simpler approach for this Court is to say that express consent was required, it wasn't satisfied, or that if implied consent was sufficient to apply what this Court applied in the role case in finding implied consent, which clearly was not applicable here. In role, the Court found implied consent only because, quote, the litigant or counsel was made aware of the need for consent, didn't happen here, and the right to refuse it also didn't happen here, and still voluntarily appear to try the case. Further, the Court emphasized in role, the party later actually did consent in writing. That also didn't happen here. So none of the factors that created implied consent in role were sufficient, and for that reason, we think the Court should affirm the judgment below. Thank you, counsel. Miss Stage, you have five minutes left. Now, in response to the test that Justice Sotomayor proposed about possession, that, in fact, under the historic cases, the top of Scott Kitt's Miller case, that's the easy situation. The situation we have here where the debtor has actual possession of the property, and we don't contend that Mr. Sharif had had just legal fiction as a trustee possession. This was the house he lived in, the business he ran, his own retirement accounts, and his own bank accounts. These were assets he was enjoying while trying to take advantage of the bankruptcy system, having not coincidentally left an Article III court where he was litigating, and where the Article III judge had held him in contempt and thrown him in jail several times. So he made a choice to go to bankruptcy court. He had actual possession of these assets, and that, under the historic precedent, has always been the easy case for the bankruptcy judge to decide. That case goes the other way, but that's because the litigate was trying to bring a preference action. What was happening in that case is that Sharif had seized some property, and the argument was he had done it within what was then a four-month preference period, and they were really trying to bring a preference case under the constructive actual possession. That's different than a situation with the debtor that has actual possession of the property. And so when you look at these cases, whenever it's the debtor who has possession going back to the historic English law, the courts have always allowed the bankruptcy referee or judge to make that determination. With respect to the cases that were discussed, the Whiting Pools and the State Bank of Hardensburg case, neither of those cases actually involved trustees. Whiting Pools was decided shortly after this court decided Northern Pipeline. Northern Pipeline was cited in that case, and that's a case where the bankruptcy judge's judgment ordering the internal revenue service to return property back to the Chapter 11 debtors estate, because it belonged there, subject to their rights as a secured creditor, the court upheld that. So I don't think that stands for the proposition that bankruptcy judges don't have the authority to decide disputes about where property should come into the estate. With respect to the issue of consent, yes, this does have an impact. Our argument is very much based upon the fact that the Magistrate Act has been held upheld in Roel and Perrets and Gonzalez. There is authority in the Fifth Circuit. Six of the judges in the Fifth Circuit have issued a dissent in a bankruptcy case saying that they see no basis to allow the Magistrate system to exist given that the Fifth Circuit has held that 157C2 consent is unconstitutional. So you do have a circumstance where the courts are, the lower courts anyway are seeing the two systems as the same, and they are the same. Because the Article 3 judiciary has control over the bankruptcy process at every step. It refers the cases to the bankruptcy judges. It can take them away. Anyone who ever has a problem with the bankruptcy judge can always seek a motion to withdraw the reference, and it's the district court judge who decides that. There's also macro control over the system in the sense that bankruptcy judges are appointed by the Article 3 courts. They can be removed for clause by the Article 3 courts. And for all of the reasons that the courts of appeals that address this issue unanimously across the board and upheld the Magistrate system, all of that rationale in those cases applies to the bankruptcy system. Tobel Scott. Yes. Well, he says that they say that the work possession was assertedly held not for the bankrupt, but for others prior to bankruptcy

. Miss Stage, you have five minutes left. Now, in response to the test that Justice Sotomayor proposed about possession, that, in fact, under the historic cases, the top of Scott Kitt's Miller case, that's the easy situation. The situation we have here where the debtor has actual possession of the property, and we don't contend that Mr. Sharif had had just legal fiction as a trustee possession. This was the house he lived in, the business he ran, his own retirement accounts, and his own bank accounts. These were assets he was enjoying while trying to take advantage of the bankruptcy system, having not coincidentally left an Article III court where he was litigating, and where the Article III judge had held him in contempt and thrown him in jail several times. So he made a choice to go to bankruptcy court. He had actual possession of these assets, and that, under the historic precedent, has always been the easy case for the bankruptcy judge to decide. That case goes the other way, but that's because the litigate was trying to bring a preference action. What was happening in that case is that Sharif had seized some property, and the argument was he had done it within what was then a four-month preference period, and they were really trying to bring a preference case under the constructive actual possession. That's different than a situation with the debtor that has actual possession of the property. And so when you look at these cases, whenever it's the debtor who has possession going back to the historic English law, the courts have always allowed the bankruptcy referee or judge to make that determination. With respect to the cases that were discussed, the Whiting Pools and the State Bank of Hardensburg case, neither of those cases actually involved trustees. Whiting Pools was decided shortly after this court decided Northern Pipeline. Northern Pipeline was cited in that case, and that's a case where the bankruptcy judge's judgment ordering the internal revenue service to return property back to the Chapter 11 debtors estate, because it belonged there, subject to their rights as a secured creditor, the court upheld that. So I don't think that stands for the proposition that bankruptcy judges don't have the authority to decide disputes about where property should come into the estate. With respect to the issue of consent, yes, this does have an impact. Our argument is very much based upon the fact that the Magistrate Act has been held upheld in Roel and Perrets and Gonzalez. There is authority in the Fifth Circuit. Six of the judges in the Fifth Circuit have issued a dissent in a bankruptcy case saying that they see no basis to allow the Magistrate system to exist given that the Fifth Circuit has held that 157C2 consent is unconstitutional. So you do have a circumstance where the courts are, the lower courts anyway are seeing the two systems as the same, and they are the same. Because the Article 3 judiciary has control over the bankruptcy process at every step. It refers the cases to the bankruptcy judges. It can take them away. Anyone who ever has a problem with the bankruptcy judge can always seek a motion to withdraw the reference, and it's the district court judge who decides that. There's also macro control over the system in the sense that bankruptcy judges are appointed by the Article 3 courts. They can be removed for clause by the Article 3 courts. And for all of the reasons that the courts of appeals that address this issue unanimously across the board and upheld the Magistrate system, all of that rationale in those cases applies to the bankruptcy system. Tobel Scott. Yes. Well, he says that they say that the work possession was assertedly held not for the bankrupt, but for others prior to bankruptcy. The party in possession was not subject to some rejudgment. Could Budaidvester only the plenary suit under Section 23? By that, I take it. He means this is case. It's true that he said he was trustee. His mother says no, no, it is my property, whatever. And therefore that fits within that case. And therefore this is one of the ones that went to a full court. Didn't go to the bankruptcy judges. Is that this case? What's your response to that? But that's not this case because the debtor has possession. And Tobel Scott sets out five circumstances in which we have plenary or summary jurisdiction under that statute. And on the easy side of the line, on the constitutional side, post-turn, is debtor's possession of that property. Or you can't make a claim like we have here. And wellness never conceded that the trust was valid. That was the dispute before the court. You can't let a debtor what you can. But it would be very difficult for the system if a debtor were allowed to say, I don't really own it. I'm using it. The money here is in his bank account, that's the point. Yeah. I mean, you would have a circumstance where the bankruptcy judge would have no authority. And Mulevine Nugent decided back in 1902, recognize that. And said you would have courts that would have no ability to supervise the system that they're charged with supervising. Thank you. Thank you, counsel. The case is submitted.

The Heragumint Next in case 13935 Wellness International Network versus Sharif. Ms. Stage? Ms. Chief Justice, and may it please the Court. Stern v. Marshall Held that a bankruptcy judge may, consistent with Article 3, enter judgment in an action that stems from the bankruptcy itself. The claim it issue in this case meets that test. Wellness asked the bankruptcy court to decide the first and most fundamental question that arises in every bankruptcy case. What property became part of the debtor Sharif's bankruptcy estate under bankruptcy code section 541 on the day Mr. Sharif filed for bankruptcy? As this court recognized over 100 years ago in Mueller v. Nugent, it is essential that bankruptcy judges have that authority. As long as there have been bankruptcy laws, there have been debtors like Mr. Sharif who devised creative ways to keep property in their own possession and out of the hands of their trustees and creditors. Here, Mr. Sharif's case. Well, we've already held that a fraudulent conveyance against a non-creditor is an Article 3 violation, is a stern claim, essentially, or a non-curn claim. So why isn't this the same thing? Because this action is a good thing. I mean, it's not the same thing because he actually possesses this trust. It's in his name as trustee. Yes, I think. So it's a little bit, it's a lot different. But yes, but the allegations of the complaint were that Mr. Sharif owned the property and to the extent the trust existed, it should be ignored by virtue of the way he held the property. But that's the same in a fraudulent conveyance. It was his property and he was just trying to deny his other creditors the benefit of that money. So it's not quite that. Well, it's different, Your Honor, because in a fraudulent transfer claim, the debtor actually passes title over to someone under the definition of 548 or the year he's claiming that the best beneficiary has title. Yes, but that's the very dispute that the Court was asked to decide. Under Thompson versus Magnolia Petroleum, the issue is not what the debtor claims his title is, but whether he has actual possession. And so here, the assets that we have here are the condominium that he lives in and he's lived in for 20 years. A pharmacy business, he's a pharmacist that he's been operating for many years and that in the past he had reported as his business on his personal tax return. We have his own personal retirement account that somehow inexplicably ended up in the mother's grantor trust and then we have bank accounts that he owned. And so the allegations of the complaint were that he really owned this and this charade that he put up in front of the bankruptcy court of saying this is owned in a trust. That was the dispute the Court had to consider. And a way, I think to think of it as differently from a fraudulent transfer action where you're against a true third party to whom title has passed, that chose an action, the intangible right to sue on the fraudulent transfer claim or is in stern the right to bring the breach of contract or tort claim. In these other cases, that asset, the right to sue, exists in the estate at the time of its creation. Who is the beneficiary of this trust, his sister, right? Well, that's what's claimed. That's what's claimed, yes. And so what would be the effect of a declaration by the bankruptcy court that that respondent was the alter ego that it was actually his property? What the sister, would the sister be bound by that judgment? Would the sister have to appear in the bankruptcy court as if she were a creditor? Well, yes, she would be bound because if we accept their characterization, the trustee through his litigation conduct binds the beneficiary under well established Illinois law, the law of, it's just basic trust law. But more importantly, she did appear in this action. She appeared through counsel, she too was subpoenaed, she too failed to produce the trust documents in response to requests. She was given notice of the case as a creditor and could have filed a claim. And there was a safety valve for her and she's in fact exercised her ability to have that safety valve. She could have filed a proof of claim in the case. With the court, the bankruptcy court have had the power to notify her or to subpoena her to come in as a party. Yes, because if she was a necessary party to the action, the normal rules of Federal civil procedure apply through the bankruptcy rules and she would have been required to be brought in, she's not a necessary party because she used to represent it. They created this construct of this trust. So he's even how I write about the basic facts. Creditor wants some money from debtor who's in bankruptcy. Creditor says, I look at your list of assets. It seems to me something's missing. I have a piece of paper here that you filed one year ago at the bank which says you have five million dollars more. Where is that on the list? He thinks about it and he says, oh, yeah, there was five million more. But that wasn't mine. That belonged to Saudi Arabia or that belonged to my cousin or, and so they say, let's prove it. And that's what we're issued. That's what's a issue. And the bankruptcy court, it happens here that the claim is not Saudi Arabia. The claim is not my cousin. The claim is that the five million dollars was a living trust of which there seems to be very little record. It belongs to his mother. But in principle, it's no different, is it? Your view. No, that's exactly what we have. Simple claim. We'll hear from the other side, which we'll say it's very different. Right. And that is the basis of bankruptcy. If we think about what bankruptcy is and what it historically always has been, it's been about the in-rem jurisdiction of the court to take control of the debtor's property. And this case really is easy because the debtor is in possession of the property. The nature of this property, he's personally. Is that the only basis for distinguishing Stern? No, it's not, Your Honor. There's a number of things. What else? Okay. This has decided as a matter of Federal law section 541 determines what comes into the estate and what doesn't. It's not a- Whether there's a trust or not is not a question of Federal law, is it? But the question of whether something belongs to the bankruptcy of state is a Federal question even if state law informs the answer. This Court's precedent in other under other statutes. It's Law v. Segal last year. It's a question of Federal law even if state law provides the answer. Yes, Your Honor. And that's- The Court has interpreted Federal statutes dealing with property rights, the Paulson- And that wasn't the case in Stern? It was not the case in Stern. The claim there was- It was clear that the White Plies there what was in the estate is a question of Federal law. Even if state law provided the answer. The difference here would be if there had been a dispute between the debtor in Stern and her bankruptcy trustee over who got the right to go sue Pierce, the- the Sun in Law, that would have been this case. That would have been the 541 question. The chosen action is what exists in the estate at the time of its creation. And so that chose of action when you go out and you seek to go liquidate that, bring the lawsuit, that's the augmenting type claim that the Court has talked about it in its precedent in Stern and in Northern Pipeline. S.P. It's supposed Illinois law governs the issue of the trust. And it's supposed Illinois law says that when a- when it is held that the trustee is- that the trust is the trustee's alter ego, that the property does not become- that the- the- the property issue does not become the property of the trustee until there's a judicial declaration that that occurs. Well, I don't think that changes the analysis because ultimately in a bankruptcy case, if you're going to have a- So that would be a question of the status of this under Illinois law. I'm not a federal law, right? It would inform the decision, but ultimately whether the property comes into the estate or not, is determined under Section 541. And so the- the Court of Appeals who have addressed this issue and we list a number of those cases in the third footnote in our brief, all are very uniformed. They are looking to state law in a variety of different contexts to figure out what the debtors' rights are in the property because that's the butiner decision of this Court. But ultimately when you make that final determination that it is property of the estate, you look to 541. And Congress would have intended that disputes over trust be part of that 541 determination by its inclusion of Section 541D, which talks about what title the debtor holds, whether it's legal title or equitable title, which is directly, you know, driven toward trust because that's when you have a division of title. And so it was intended that Federal law would cover that. I mean, I also think that, you know, a key difference between this and Stern in the form of claim that we have here is this is being brought against the debtor. This isn't being brought against a third party who's been hauled into bankruptcy court against their will. The debtor has chosen to file a bankruptcy knowing by virtue of the statute that he or she will be required to turn over their property to the bankruptcy trustee that there may be disputes over that. And there can be legitimate disputes. It doesn't necessarily just have to be a dishonest debtor like we would contend we have here. And that they're going to be in front of the bankruptcy judge in the first instance having those disputes determined. It's part of the federal scheme exactly what bankruptcy is supposed to accomplish, which is to get all of the debtor's property put into the bankruptcy estate for distribution to creditors. That's the central key point of every bankruptcy case. And if you don't do that, you lose your discharge like Mr. Sharif. It really is, this action really is the flip side of the denial of his discharge, which no one disputes the bankruptcy judge had the authority to decide. She couldn't decide if he should receive a discharge. If we didn't know what it was, he was supposed to be doing in the case in terms of the property that he had. And the two claims really overlap each other. They're the flip side of each other. That's why I think this is different than a cause of action against a third party, such as you had in Stern or Northern Pipeline or Grand Financier and the like. The consent question completely. Basically the argument that the SG and the, of you and the SG is that you need express consent. Or I guess the other side say you need express consent and they didn't give express consent. How do you get around that? Well, you're under we think that you don't need the court has held in roll that implied consent is permissible. The argument is based upon the bankruptcy rule, bankruptcy rule 7,012. And if you look at section 157C, it uses the term express consent and then just the term consent. In connection with section 157C2, which deals with the consent of a litigant to proceed to judgment on a non-corristered claim, it uses the word consent. So if we assume Congress meant to require express consent in 157E dealing with consenting to a jury trial, right? They must not have required express consent and then we have a rule that's going beyond what the statute provides. That's exactly the situation in roll that we have in the jury. We don't have to reach both these questions if we find one of them in your favor doing. That's correct. If you don't find it to be a Stern claim, then consent would be. Which one is the better one? Which is the prettier question? Or the one that you think has more real world effect? Well, I think the first question has real world effect in the sense that if the court were to take away from bankruptcy judges, the power to litigate disputes with the debtor over what they possess comes in or out of the bankruptcy estate, you'd see a sea change in how cases were handled. Because that's the basic dispute you're going to have with the debtor. You're going to have three disputes with the debtor. It's going to be. Even if consent were sufficient to confer a jurisdiction, that's that's maybe just to continue justice, clear question. Or the bankruptcy courts more confused by question one or question two. I think there's a lot of confusion out there, Your Honor, and I think that certainly people are also concerned about the consent question. Because the situation that you have today is that both parties could consent and the bankruptcy judge could enter a judgment and then the party who loses can turn around and say, well, there's a question about whether I really consented or not or whether it was appropriate. So, Keth, are problems for the courts right now? Can I ask you said implied consent should be sufficient. How would you go about applying consent? When would there be implied consent on the basis of what? Well, I think you would have implied consent where you have here, you have a debtor who moved for some rejudgment. He asked the bankruptcy judge to enter judgment in his behalf. He never sought withdrawal of the reference. He never sought to ask the district court to take this matter away from him. We have, I think, the act of filing a bankruptcy puts you in front of the bankruptcy judge for at least the basic administration of the state property of the estate determinations, but I would submit for all matters involving the debtor because they all really do relate to that. It's basically property of the estate determinations whether property can be claimed as exempt and whether the debtor gets the discharge. That's what will involve 99 percent of litigation with the debtor. You've said I think that the consent has to be knowing an intelligent. Is there something that has to be told to the debtor to make the consent knowing an intelligent? Congress didn't require that here in Section 157, and you know, it's a maximum of the law that knowledge, you know, lack of knowledge of the law is no excuse. The statute puts you on notice that there is a list of proceedings, the core proceedings, that are like the old summary proceedings under the Bankruptcy Act, that the bankruptcy judge can decide to final judgment without the consent of the parties. And the statute also puts you on notice that if you don't agree with that, you can ask the bankruptcy judge to make a determination. You can ask the district court judge to make a determination. There is a problem, however, here, and that problem is that Stern wasn't decided until the appeal. So, on rebuttal, I want to talk about the American College's appellate waiver argument. Yes, Your Honor. Thank you. Thank you, Council. Mr. Ganon? Mr. Chief Justice, in May of Please the Court. We agree with petitioners on both questions presented with respect to the first question. We don't think this is like a stern claim for the two reasons that have already been discussed. That is that the question of whether something is property of the State Intersection 541 stems from bankruptcy itself. But that's too broad an answer, because that would be true of fraudulent conveyances. Well, and it also does not involve an attempt to augment the estate. We're talking about a determination about a simple rule. If you have legal title to something, well, if you possess it physically or you have legal title to it, then the bankruptcy court can determine. Well, I think he has the trustee had legal title. He's just claiming that there is an equitable requirement to hold it for someone else. And under 541D, if it is true that the trustee only holds bear legal title, and then ultimately, the trust is not looked through because it's found not to exist or because it's found to be the alter ego of the trustee, then the equitable interest would not have come into the estate. I'm trying to get away from the augmentation argument because it's really difficult to apply in a case like this. Anything that's in the estate augments it or anything that comes. Well, I don't think that that's true. I think that when the court in Stern and Grand Fund on Sierra in Northern Pipeline was talking about the difference between questions that stem from the bankruptcy itself and are integral to the restructuring of the debtor credit or relationship they were talking about. The baseline that you have there with the estate is the property. Tell me what my rule is not simpler. Well, I think that if you physically possess it at the time, you declare bankruptcy or you have legal title to it, then the bankruptcy, then it's not a Stern claim. I suppose that that, that, that, that what this is fainting towards is the system that the parties have talked about that developed under the 1898 Act that ended up being a relatively reticulated system as described in its Owl Scott Kitsmiller case in which there are multiple categories in which the bankruptcy court would have jurisdiction to make these determinations. And we agree with petitioners that on facts like these where there was possession of the property, which we think indisputably the trustee had possession of the trust assets here, and that would be enough to give the bankruptcy judge the jurisdiction or the referee into the 1898 Act cases jurisdiction to determine who had title. And if you would look to history, pardon? And Stern, we said we would look to history. Portions of the Stern opinion looked to history, but I did not indicate that the historical precedence for this were going to be dispositive. And we don't think that that the rationale of Stern, Grand Financiera, and Northern Pipeline requires that as an article three matter, nor does the statute here because the statutory definition of property of the estate refers to property wherever located and by whomever held. It still ultimately has to be property of the debtor. And so if you're going to say that if it's if the debtor holds title to the property, that is the ultimate determination. So let's note that that's not a hypothetical. The sister holds title, but you're saying that it belonged to him. Well, I think that she holds legal title, but in fact, she, it's really his money. Well, I think if she held legal title and the property had already been transferred to her and that's what the bankruptcy judge determined, then it wouldn't be property of the estate. But we don't know the answer to the question of who holds title until the so-called Stern claim or non-Stern claim has already been decided. And so I think that that's the trouble with assuming that the answer to the title question or the ownership question because that is the answer to the property of the estate question. We can't wait to know the merits determination before we know whether it's a Stern claim, I think, is the problem with approaching it that way. But it is sensible to say that the question of whether something was property of the estate on day one such that it was the debtor's property because that's the determination here that that is not like a Stern claim. It's not like a fraudulent conveyant or avoidable transfer where you're attempting to go out after the bankruptcy has already been initiated and trying to reduce a chosen action to judgment and liquidate it and therefore increase the size of the estate after the fact. Kounsel, on the consent question, is it under your theory, is there anything wrong with Congress adding a proviso to every Federal contract, saying the contractor hereby agrees to waive any Article III objections to having disputes with the government resolved by something we'll call the Congressional courts where the individuals serve for three years and Congress has a lot more sway over their decisions. Well, I suspect yes, if for no other reason than be, I mean, I mean, I'd even just say yes. Yes, why? I forget the question. If for no other reason than be. Yes, it's okay. Yes, that that would be a problem. I'm sorry, that that would not be permissible. I've forgotten the question. But the reason why this would not be. I thought it was an unforgettable question. I don't know. I promise you I won't forget it now. Yes, but yes, we have no bananas. The reason why this would be a problem is because of the structural concerns that you raised there, which we don't think are present here. When you said that those were congressional courts that would be more subjects to supervision by Congress, we do not think that that describes the bankruptcy system. We think the bankruptcy system is akin to the magistrate judge system, where this court has repeatedly recognized that the structural concerns that were an issue in shore were not sufficient to create a problem. There are two things here. There is both the consent of the parties, but also adequate judicial control, both in the aggregate over bankruptcy judges who were appointed by and removed by Article III judges, and also in every individual case because they don't get any bankruptcy case. There's judicial control in the sense that you have deferential appellate review. It is in one spot, but it still takes out of the Federal courts our constitutional birthright to decide cases and controversies under Article III. And I think it's hard for me to see how sort of vague notions of, oh, well, the judges are involved there somewhere. But I don't think that this is vague. We're talking about something different from just having appellate review after the fact. We're talking here about supervision of the bankruptcy judges, just like magistrate judges, by Article III judges. They're appointed by and removed by them. They don't ever get a case unless the court agrees to give it to them. And that seems to me the principal difference between your hypothetical congressional court scheme, which is that the parties are all not even making a voluntary choice because Congress is deming them to have made the choice. And then also, no court is able to say, I do not want the transfer to happen. And both of those things are not true here because the parties are able to make the choice and the courts are able to withdraw the reference. The parties are always able to ask for the courts to withdraw the reference. This makes it just like the bankruptcy system with respect to whether it's a consentible constitutional violation. And so we don't think that this is like subject matter jurisdiction. And the court in Stern said that, that the division of authority between bankruptcy judges and district court judges in 157 is not a question of subject matter jurisdiction. And we think that is why it's one that's wavable. In youth of go back to your experience in your office, I just wanted to know it seems to me by memory, but I'm not positive. It is not totally unusual. And we do have the power to give two affirmative answers where either answer would be sufficient. That is, we could answer both questions. Now, as a representative of the solicitor general, is your reaction the same as mine? That there are cases where we've had two questions. And we say, one would be enough for the party to win. So would two, but we think it's important to answer both and we will. I do believe that the court has done that. I don't have any particular cases at the tip of my hand. Perhaps so. Perhaps it's made up of mistakes as well. That's what I wondered. Is there any reason that strikes you that that would be a mistake? I don't know anything in the Constitution or in any precedent of this court that prohibits it. So I think saying it as a mistake does not necessarily make it one. I think that that's something that would be in the discretion of the court. I do think that both of these questions are independently important. It is the case that petitioners can prevail and you could reverse the judgment of the court of appeals on either ground and without having to reach the other. I do think that until the case to be low, there probably was not confusion in the bankruptcy courts about whether a question is involving the definition of the property of the estate were stern claims. And so, but I do think that there is confusion about that just by virtue of the fact that this case is here. Could I ask you this quick question before your time runs out. If Federal bankruptcy rule 72B applies to stern claims because they are non-core, do you agree with the petitioner that the rule is invalid because it requires express consent and the statute does not refer to express consent? I don't think you have to get to the point of saying that the rule is invalid. That's not the way the court approached the case in Roel where the situation was, as my friend just said, exactly parallel. The statute did not require express consent, or it did in some places, but not in this one. And the same thing is true if you contrast 157C2 with 157E. The relevant statutory provision here does not require express consent. This Federal rule of civil procedure that was applicable in Roel well did, and the court nevertheless said that it was going to overlook the lack of an express waiver there because it found that there was sufficiently implied consent on the record. Do you agree that the start of the start of the outpriced claims? Excuse me. Do you agree that implied consent, really, by filing the voluntary bankruptcy petition? Well, I think the court did not, I thought that that's what the petition was. When you said a voluntary bankruptcy petition? Yes. The court didn't grant served on that question. We do think that there's lots of other conduct here, but ultimately there's also the forfeiture after Stern itself was decided that we think would be adequate to decide that there was consent in this case. Mr. Gannon, I hit the protract your presentation here. I wasn't clear about what your answer to Justice Breyer covered. Did you say there are prior cases in which we have decided two constitutional questions? I said two different questions. Oh, I think that's a constitutional question. It's given that we're supposed to avoid the determination of constitutional question. I do realize that that is the general credential rule that the court applies, but I think that it normally does so in the context of, it would be upholding the statute in both regards. And therefore, I don't think that the normal concerns about constitutionality rise to the same level. Council facts, do you? You were saying that you wanted to talk about the importance of both questions. I think you got the first one out. What in your view was the importance of the second? Well, I do think that the court was not able to decide the consent question in executive benefits last term, and that there is a circuit split on it. It would be very useful to know that stern claims are the sorts of things to which parties consent or that those claims are wavable as they are in the mandatory judge context, which we think is parallel. But the government agrees with the petitioner that the first question, what goes into this estate, that if we had to choose between the two, which would you say is somewhat important? I think that it would be good to settle that for purposes of bankruptcy courts, but you would still have the unsettled consent question that has been kicking around ever since stern, and on which there is already a circuit split. In vice versa. Thank you, council. Mr. Hacker? Mr. Chief Justice, and may it please the court, we agree with what I understand the solicitor general's position this morning to be that the stern rule is relatively straightforward, which is that a common law claim that seeks to augment the estate with third-party property cannot be withdrawn by Congress from Article 3 jurisdiction. We also know that the alter ego claim asserted by wellness was a common law claim seeking to augment. Thanks, the question. Your client possessed something, and he says it really belonged to someone else. Don't you have to decide who it belongs to if there is no clear indication of it? And there might be a clear one, but it still begs the question. Right, two points in that, Your Honor. Let me start with where this court started, and where the law has been for decades, if not centuries, which is that the trustee of a trust possesses, if anything at all, no more than a bare legal title. And so this court said in the Hardensburg case, it said in Whiting Pools, and more importantly, maybe most importantly, there is no case anywhere to the contrary that when a trustee of a trust declares personal bankruptcy, the trust assets do not become part of the estate at the commencement of the bankruptcy. So what wellness had to do was establish through its common law alter ego claim that was to bring the assets of the trust into the estate. You're just saying that they didn't decide it correctly, but it's terribly easy to imagine a different debtor who goes into bankruptcy, and he lists item one, two, three, and four. And the creditors come in and say, you know, it's awfully surprising. Four or five, six months ago, I have a similar list you gave to the National Bank, and you had ten items on it. What happened to six through ten? And the debtor replies, oh, they didn't really belong to me. Why not? Because state law gives it to somebody else, because state law is the source of all property law, and they say no, and now we have a dispute. So forget about the trust. Maybe I don't see why that's special. This is simply a question of whether a bankruptcy judge can litigate who owns items six through ten. And one party says state law gives them to my cousin Mary, and the other party says state law gives them right to you. Now, if we say no, inside with you on that one, what happens to the constitutional grant to Congress to make uniform laws of bankruptcy? I imagine it would still exist, but I can't imagine in what form. Now, you see a pretty hostile argument, so I would like to hear your reply. And I think the example is a good one, because I do think the trust is very important, because we do have decades of law on that. But the example is not problematic, because if in that situation, the trustee says I see some other bankruptcy trustee. I see some other property. And the debtor says that's not mine. I do think it's true that there wouldn't be a litigable claim there, unless the third party also asserted ownership to the property. But if that happened, if the third party says that's not the debtors, that's all mine. I've had it for years. That's my car, that's my boat, that's my house. Then I think it's absolutely clear that under that circumstance, the trustee could not extinguish the third party's rights, the bankruptcy court could not distinguish the third party's rights by itself. That's an article three claim, a classic private rights claim, where the bankruptcy trustee, the bankruptcy court, is reaching out to take the third party's property on the trustees. And what is the example of six through ten that you could find that wouldn't involve the issue you have described, because if there is a piece of property, and the debtor is saying it isn't mine, it must be somebody's, and by definition it's not the creditors. And so it must be somebody else's. And so that other person, if there is a dispute, will say it's mine. And therefore, isn't your answer to say to my question, too bad the bankruptcy trustee, cannot litigate. Who owns six through ten? So long as the third party... So the answer is yes. Yes, he can't do it. All right, then we're back to where are we with bankruptcy courts? When you have taken from them the power to litigate what I would think is the most fundamental thing imaginable. How much money does the debtor have in cases where that is in dispute? I don't think that's fundamental, because you have what you're talking about. I mean, this court already crossed that bridge, I think, in Stern, and saying when you're augmenting the estate with third party property, you don't assume at the beginning of the Article III litigation that the other side has a claim. That's the whole point. The other reason is that the other side has not that point for thousands of years this has been the law. So can you think of any case? I find it rather interesting. I'm reading about Henry II, who in fact created many of the laws of England. So from the time of Henry II onward, is there a case that you have found somewhere which said that the bankruptcy trustee or the bankruptcy judge cannot litigate who owns property, the bank rupt or someone else in the state, in the estate. Well, a couple of years ago, all of the key sides of Stern, he made me. Stern is a case of a third party and a counterclaim, and there never would have been the money in the estate, had it not been for the fact that the debtor in fact asserted a claim, a counterclaim against a claim that was being made by an outsider to the estate. It's not too hard to distinguish Stern, but I am saying other than Stern, I don't even think Stern, let's go back to Henry II. Maybe you have so many, you'd have to send them on a list, but maybe not. You can look at all the cases cited in both sides brief. I think the rule is best stated in the Talbol Scott Kittsmiller, which is one word case, that says when there is a bona fide claim of adverse possession or excuse me of ownership by a third party, that can't be extinguished except through a plenary proceeding. And it's the exact same situation you're talking about, Your Honor. There's no difference, and there's decades of that law, and that law and that rule was never disputed. And so going back now to the trust proposition, I think it's important to make clear that wellness is a certainty. So what is a third party? You said it's just, it's no different. No different than a third party coming in and saying, that's my vote. Who is a third party here? The third. Go ahead. There is only the trustee. This is supposed to be his mother's trust, and his sister is supposed to be the beneficiary. So who is a third party? So there's a, well, three. There's the trust, but importantly, during her lifetime, so at Watar was the owner, the only owner of the beneficial interest in the trust assets. So she's the third party. So to the extent the bankruptcy court wants to decide for itself. I thought she was dead. When the bankruptcy was commenced, she was still alive, and she had the absence of revocable living trust. She has the absolute right to use all of those assets to revoke the trust. That's their her assets. If she had declared bankruptcy, those assets would have been in her estate. There's one way if she went she was alive. Did she say bankruptcy court? Wait a minute. This belongs to me. She was in Syria, I think, at the mature at what point, but the point is the trust itself wasn't existing document and wasn't existing entity. And I want to be clear about something. Wellness doesn't dispute that. I mean, exhibit 13 to Sheree's deposition was the trust amendment in 1996. It was an existing trust. In fact, their first primary argument, which pervades their reply brief, depends on the proposition that the trust was a real entity, because what they're saying is a version of what you were saying, just to sort of my R, which is that he had possession because he was the trustee of the trust. The possession only exists because he's the trustee of a trust. The trust assets aren't listed in his name. If they're not in the trust, there's no tenable theory that he is the on the face of the assets. That they start in the estate, they're going to have to be gotten somehow. So their theory is, well, he's the trustee of a trust and therefore he has sufficient possession. And our answer to that is simple. Not one case ever in the history of Western law that anybody has found says that trust assets go into the personal bankruptcy of state of a trustee, if and when the trustee declares bankruptcy, this court said the opposite in Hardensburg, it said the opposite in White and Pools, in saying that when you have only bare legal title, which is at most the only thing a trustee has, only bare legal title goes in and no other beneficial interests go into the estate. So then there's a second question, a second argument, which is that, well, because in 2002, not one year just a spire, but seven years before the bankruptcy, we have discovered these documents that suggest that he was treating the trust as a trustee. But in the case you decided that the court said who decides the question of whether there's bare legal title. You said the case very clearly, only bare legal title goes nothing. But who did it go on to say that the bankruptcy court cannot decide who has the bare, whether you have only bare legal title? But those cases were not about that proposition. This is about this threshold proposition that because he's the trustee of the trust and in possession of bare legal title, that's all we need to know. That's there. No, I do. So where you brought me so far. Yes. These cases say, but they say, you have to, you can't just grab it, you have to proceed under Section 23 and have a proceeding. But the proceeding, some kind of a proceeding, I don't know exactly what that kind is, you probably do, but that doesn't mean the trustee doesn't get it. I mean, it's the trustee who litigates it out. It's the trustee who decides. But I don't know what it's Section 20. In the older cases, the rule that would apply Justice Kennedy would be the Talbor Scott-Kitts Miller rule you had to have a plenary proceeding to go get it. A plenary proceeding. Where is the order to set a place? That would have been, it's sort of the equivalent now, the parties are treating it, I think, not incorrectly as the equivalent now of an article three proceeding. This would have to be the day before the bankruptcy judge. Most of these cases, the time remember, the district court was the bankruptcy court and the question was whether it's the exercise of some regress, diction versus a plenary article three proceeding. I see the problem. A plenary proceeding. Now it would be an adversary proceeding that would have to be determined finally by the federal court. So, but I want to get to the second point because it's important, while this doesn't just rest on the proposition that just because of the trust, he's the trustee, the trust assets are part of the estate, which I think is completely unsupportable, they go on to say because seven years earlier, as trustee, he treated them as the trust assets as his own. Therefore, we should disregard the trust. That argument, I think, as I think Justice Sotomayor pointed out, is functionally indistinguishable from a fraudulent transfer claim, because they're saying based on his alleged misuse of trust assets, at some point in the now distant past, we should treat them as part of the estate. We should disregard the trust, which is just like a fraudulent transfer, which it says because of something the debtor did before transferring the assets, we should disregard the transfer and treat them as part of the estate. In that respect, it's indistinguishable, and it is in that respect in the same way. Just augment the estate. Just to clarify the record, I asked the question whether they were or weren't. Fair enough, and I will try to answer it, which is I think they are in that respect indistinguishable, and then if you follow from what all of the lower courts have said, that a fraudulent transfer action is a stern claim. Well, we've said that too. I can't say that. The hell that is an article, basically an article three claim in Grand Fennets in its Sierra. So I think for all of these reasons, it is quite clear that the action to bring these claims into the estate is a common law action seeking to augment the estate with somebody else's property, property that so-and-water owned during her life, and that Raghda Sharifa owned upon. So give me examples. The suggested rule that I had for the solicitor general, which he would like to broader one. But if at the time you have legal title two or in physical possession of something, then it's not a stern claim, not an article three claim. Because that is the quintessential question that bankruptcy judges decide are the things that you possess either by title or by constructive holding. I think there's two problems with that analysis. First is that all the trustee has is bare legal titles, and that of law. Does not have any property interest, which is what the current bankruptcy code focuses on. What are the debtors interest in property, and it's the trustee of a trust, does not have any interest, beneficial or legal interest in the assets, it's only bare legal title. So to get more interest as part of the estate, you have to have some common law way to do that, some claim for doing that, and a classic claim is an alter ego claim, if that's what you think. Because of something the trustee did, then. But you could say that's always going to be the case that you need an article three proceeding. Whenever the bankruptcy trustee determines that something belongs to the debtor and is in the bankruptcy estate, and some other private party says no, it belongs to me. That always has to be litigated in an article three court. I don't think this court needs to decide that that's not quite the question here because the property interests from the state are outside the estate. I do that what you're arguing. I would not be surprised if this court were to hold one day that if a third party has a claim to property, comes into court and says, that's my house. I know that debtor says it is, that says it's his, and the trustee thinks it is, that's my house. That that person is entitled to an article three adjudication for that. That's right. That's right. Because it's interesting. I mean, I've read the page you have there now at the cases, and I see you can, the distinction will drive you towards that, not 100 percent because there'll be some instances of colorable title and so forth, not 100 percent, but 99 percent, item 6 through 10 go to a different court. But what, in the Constitution question, the deepest one to me, is we do have a constitutional provisions specifically giving to Congress the authority to create a uniform system of bankruptcy courts which have served our economy well, I think. That's what I read. It made us richer. And on the other hand, we do have the question, as you point out, that this is determining a title where there are two people under state law, contesting it, and so which prevails. And until I think, Stern, it would have been Congress's delegation, maybe. And what is the strongest argument for not giving weight, these are sort of like administrative agencies defining, you know, deciding things that never had everybody done before? What's the strongest argument? No, don't do it. It might gut the bankruptcy court, but don't do it. Or maybe you want to say it won't gut. That's what my answer was. I don't think it will gut the bankruptcy court. We think this is just a straightforward application of where we already are with Stern. Yeah, yeah, but I agree with you to this extent. It's either Stern marches forward or it's, I'd say, steps in place. And I don't think we're pushing Stern forward. I do think we're just applying Stern, but I also want to address your point about uniform bankruptcy court. I think the fact that this court has long said and understood, and the lower courts have accepted that bankruptcy law takes state law and property rights as defined by state law, as they find them, that's all we're talking about here. To the extent there is a state law property dispute between a third party in the dead or slash bankruptcy trustee, that doesn't change the uniformity of the bankruptcy code. And I suppose the Constitutional provision authorizing Congress to establish a uniform law of bankruptcy does not authorize Congress to establish bankruptcy courts that can decide questions which would normally be decided by Article 3 courts. That's clearly right. You could establish bankruptcy law, but it's going to be an Article 3 question, the extent to which the bankruptcy courts can exercise judicial power. I would answer one more point on Justice Sotomayor's question. I had two responses. The second one was that physical possession is not a great test, as this case shows, Sharif as trustee didn't physically possess anything. If anybody did, it was the banks where the trust assets were. So you can't think about it in terms of physical possession. Well, let's not some we receive with this question one more step. That every day of the week, administrative agencies change state law. Every day of the week, they change state law even involving property. And in such a case, the question is whether has this administrative agency under authority of Congress changed state law affecting people's property rights in a way that deprives them of due process of law? Have they gotten fair procedure? And so is a possible answer to your problem? If the procedures of the bankruptcy court are fair when they litigate these questions of property right, the fact that they do affect state law and take property among persons switching it is not forbidden by the Constitution where it indeed is authorized as part the uniform system of bankruptcy law. I think due process viewed that way is not sufficient. I think again, this court answered that question in Stern. There wasn't a claim that there wasn't going to be due process for the disposition of the property rights there. The problem was that the bankruptcy court was exercising the judicial power of the United States in entering a final judgment. And if I can turn to that argument, I will. Stern itself is based on the structural separation of powers' concerns that private rights of this kind are exclusively committed to by the Constitution to Article 3. It's about the exercise of judicial power, which entails the implementation and enforcement of judgments of the United States that are entitled to full faith in credit by courts both in the United States and elsewhere pursuant to treaties. They are presidential. They can be law, they are law of the case in what can be very complicated cases that stretch around different courts and go on for years. That's- The argument you're raising now, any different as applied to magistrate judges? If we rule in your favor in this case, are we calling into question or acceptance of magistrate judge positions? Well, a couple of points. First of all, respect to magistrate judges. It's only with respect to final adjudications. Magistrate judges could still- So your answer is yes, because you can do an expressed consent, you can do reports and recommendations. As to final adjudications of private rights matters, magistrate judges could still do something, could still litigate and resolve public rights, whatever those kinds of rights and matters are. But I do think it would be difficult after this case to say that their magistrate can exercise judicial power of the United States to enter a final judgment based solely on consent. I think this court answered that question in sure effectively. Sure would have been an easy case, an incredibly easy case if consent alone were enough. Because that was an issue in sure, and the parties there did consent. But the court didn't stop with that one sentence. The party is consented, that's all we need to know. The court went on to do an elaborate analysis of the structural concerns involved and why there were no structural concerns such that the consent was sufficient. And when you boil it all down, basically what Schor said, which is what I think the court recognized in Stern, was that the structural concerns exist when you're talking about the adjudication of a private. I agree, but we didn't say that you couldn't consent in short. I understand that. I'm just saying it would have been a very easy case if consent were enough. And the court nevertheless went on to say consent is enough here because we're talking about when it makes the arbitration. And there you can give up. I understand that. And arbitration is fundamentally different. Arbitration is not the exercise of the judicial power of the United States. An arbitrator doesn't issue a judgment. It's not entitled to full faith and credit. It's a fundamentally different kind of exercise of authority. Well, but you do something which has to be enforced by a court except in very extraordinary circumstances. There's much less supervision over the arbitration system than there is over a typical bankruptcy court. Right, but the decision by the parties to go to an arbitrator, which by the way is their own decision, what arbitrator they choose is their own choice. The arbitrator is not controlled. The salary of the arbitrator is not controlled by Congress. The tenure of the arbitrator is not controlled by Congress. And when the FFA, the FAA, is not very livery. All those things make it worse. You know that this is a proceeding that's totally divorced from any kind of control by anybody. And yet, federal courts under the Arbitration Act simply have to rubber stamp it and say it's valid, except an extremely unusual circumstances. But that's pursuant to Congress's article One Power to say here's a type of contract that we're going to say is enforceable under a particular situation. That's all arbitration is. It's just contract laws. Right. I mean, they're just enforcing the party's contracts. And the party agrees that this is the party's contract. I mean, the entire question here is that the parties are consenting to go to bankruptcy court. And the question is, will that consent be sufficient in the same way that it is in the arbitration system? I understand, but it adds the element that what you're consenting to by hypothesis is the exercise of judicial power. By the entry of a judgment that will be given for faith and credit. The entry of a judgment by an entity to the subject. No, that's what happens in arbitration. You're agreeing to the entry of a judgment of an award. And perhaps not even because you don't even put that into the contract. Congress is saying we're going to do it anyway. One of the things you're not consenting to the exercise of the judicial power, to the delusion of the article three courts authority, misuse judgments that are presidential. Please, I'm sorry. Well, that's all I was going to say. You know, I understand that formalism matters in many contexts, but the fact that the arbitrator himself doesn't issue the judgment. And instead, you have to take it across the street and the federal court has to issue the judgment. Basically, on the arbitrator's say so, again, seems to me, I mean, the arbitrator case seems to me much more threatening to the integrity of the Federal Judicial System than a system of bankruptcy courts, which are from the very beginning all the way through supervised by district courts. Well, I mean, the key difference, though, I think, is that, as I said, bankruptcy courts are exercising judicial power. Arbitrators aren't. And then when the district court, in an arbitration proceeding, all the district court is doing is enforcing a judgment, excuse me, enforcing an arbitration award, a contractual choice, pursuant to a congressional judgment that says, here are the rules, the decision rule, for enforcing this particular type of contract. That's an article one issue, it's within Congress, it's article one power, to constrain, to establish the decision rule that the part, the entity exercising judicial power will apply. In this situation, the party exercising, the entity exercising the judicial power is a non-article three court. It says, if you said, you changed the FAA and added another paragraph to say, and arbitrators awards are exercises of their final judgments of the United States, entitled to full faith and credit, subject to a palette review by the, by a palette courts. I think the Court is just talking about the forfeited argument on appeal. The argument that consent can be presumed from your forfeiture of the argument on appeal. And I'm glad you put it that way, Your Honor, because I think they're different points. The law clearly requires consent, and I think everybody agrees it requires knowing and voluntary consent, that you have to have at least that, the rule, which we think is applicable, and agree with the American College of Bankruptcy, that the rules writers in this court in implementing the rule required express consent. I don't think there's a credible argument here that there was express consent. And I think this Court ought to adopt express consent as the requirement and hold that there was not express consent here, precisely for the constitutional avoidance reasons that Justice Scalia mentioned earlier, to avoid getting into the whole discussion we just had. Because if there's insufficient consent here, then we don't need to decide the circumstances under which consent is. But this is not a specific. It's not a species of consent. It's different from consent. And I'm sorry, I delay getting to Justice Haudenosaure's question. The reason there's no forfeiture here among the reasons is that this was a problem of appellate jurisdiction. There was no appellate jurisdiction here because there was no final judgment in the bankruptcy court. If our first argument was right, then the bankruptcy court lacked authority to issue a final judgment. So when we went up to appeal, quote, unquote, in the district court, there was no, it wasn't permissible for that court to exercise appellate jurisdiction. You think a final judgment has to be a valid final judgment in order for there to be an appeal? I think it has to be. And it can be invalid. Well, it's not a question of being a defect. I think the problem here is there is an absolute lack of any authority to enter a final judgment. There wasn't something from which the district court had any authority to exercise appellate jurisdiction. That was the problem. It wasn't just a court-induced judgment against you. And you say that court never had jurisdiction to enter that judgment. You can't take an appeal because there wasn't a final judgment because the court below lacked jurisdiction. That's the argument. Well, the argument would be, if at any point on appeal, I can raise the problem that the court, to which I'm appealing, lacks appellate jurisdiction, lacks jurisdiction to resolve the case. That's the kind of non-wavable problem. And it's something that cannot be waived, also can't be forfeited. And so that's the reason that there's no forfeiture problem here. Beyond that, it's quite clear that Mr. Sharif made every effort to preserve the issue to the extent he became aware of it. It was only six weeks after Stern was decided that he filed his opening brief, did not cite Stern. That's true. But only a month or two later, his sister, Raghda Sharif, files a motion to withdraw the reference. And then he immediately, essentially, his lawyer, realized what's happened. As soon as he's aware of the Stern argument, as soon as the seven circuit issues its decision in Ortiz actually applying Stern, then he properly raises this issue. He's not sandbagging. There's no gamesmanship here. As soon as it's clear that he understands that his consent was required before what happened to him could permissibly happen, he demonstrated that he did not consent to the exercise of that jurisdiction. Now, of course, our primary submission is the Bank of C.C. Court never had that jurisdiction. And we think that's a correct argument, but to avoid that argument, we think the simpler approach for this Court is to say that express consent was required, it wasn't satisfied, or that if implied consent was sufficient to apply what this Court applied in the role case in finding implied consent, which clearly was not applicable here. In role, the Court found implied consent only because, quote, the litigant or counsel was made aware of the need for consent, didn't happen here, and the right to refuse it also didn't happen here, and still voluntarily appear to try the case. Further, the Court emphasized in role, the party later actually did consent in writing. That also didn't happen here. So none of the factors that created implied consent in role were sufficient, and for that reason, we think the Court should affirm the judgment below. Thank you, counsel. Miss Stage, you have five minutes left. Now, in response to the test that Justice Sotomayor proposed about possession, that, in fact, under the historic cases, the top of Scott Kitt's Miller case, that's the easy situation. The situation we have here where the debtor has actual possession of the property, and we don't contend that Mr. Sharif had had just legal fiction as a trustee possession. This was the house he lived in, the business he ran, his own retirement accounts, and his own bank accounts. These were assets he was enjoying while trying to take advantage of the bankruptcy system, having not coincidentally left an Article III court where he was litigating, and where the Article III judge had held him in contempt and thrown him in jail several times. So he made a choice to go to bankruptcy court. He had actual possession of these assets, and that, under the historic precedent, has always been the easy case for the bankruptcy judge to decide. That case goes the other way, but that's because the litigate was trying to bring a preference action. What was happening in that case is that Sharif had seized some property, and the argument was he had done it within what was then a four-month preference period, and they were really trying to bring a preference case under the constructive actual possession. That's different than a situation with the debtor that has actual possession of the property. And so when you look at these cases, whenever it's the debtor who has possession going back to the historic English law, the courts have always allowed the bankruptcy referee or judge to make that determination. With respect to the cases that were discussed, the Whiting Pools and the State Bank of Hardensburg case, neither of those cases actually involved trustees. Whiting Pools was decided shortly after this court decided Northern Pipeline. Northern Pipeline was cited in that case, and that's a case where the bankruptcy judge's judgment ordering the internal revenue service to return property back to the Chapter 11 debtors estate, because it belonged there, subject to their rights as a secured creditor, the court upheld that. So I don't think that stands for the proposition that bankruptcy judges don't have the authority to decide disputes about where property should come into the estate. With respect to the issue of consent, yes, this does have an impact. Our argument is very much based upon the fact that the Magistrate Act has been held upheld in Roel and Perrets and Gonzalez. There is authority in the Fifth Circuit. Six of the judges in the Fifth Circuit have issued a dissent in a bankruptcy case saying that they see no basis to allow the Magistrate system to exist given that the Fifth Circuit has held that 157C2 consent is unconstitutional. So you do have a circumstance where the courts are, the lower courts anyway are seeing the two systems as the same, and they are the same. Because the Article 3 judiciary has control over the bankruptcy process at every step. It refers the cases to the bankruptcy judges. It can take them away. Anyone who ever has a problem with the bankruptcy judge can always seek a motion to withdraw the reference, and it's the district court judge who decides that. There's also macro control over the system in the sense that bankruptcy judges are appointed by the Article 3 courts. They can be removed for clause by the Article 3 courts. And for all of the reasons that the courts of appeals that address this issue unanimously across the board and upheld the Magistrate system, all of that rationale in those cases applies to the bankruptcy system. Tobel Scott. Yes. Well, he says that they say that the work possession was assertedly held not for the bankrupt, but for others prior to bankruptcy. The party in possession was not subject to some rejudgment. Could Budaidvester only the plenary suit under Section 23? By that, I take it. He means this is case. It's true that he said he was trustee. His mother says no, no, it is my property, whatever. And therefore that fits within that case. And therefore this is one of the ones that went to a full court. Didn't go to the bankruptcy judges. Is that this case? What's your response to that? But that's not this case because the debtor has possession. And Tobel Scott sets out five circumstances in which we have plenary or summary jurisdiction under that statute. And on the easy side of the line, on the constitutional side, post-turn, is debtor's possession of that property. Or you can't make a claim like we have here. And wellness never conceded that the trust was valid. That was the dispute before the court. You can't let a debtor what you can. But it would be very difficult for the system if a debtor were allowed to say, I don't really own it. I'm using it. The money here is in his bank account, that's the point. Yeah. I mean, you would have a circumstance where the bankruptcy judge would have no authority. And Mulevine Nugent decided back in 1902, recognize that. And said you would have courts that would have no ability to supervise the system that they're charged with supervising. Thank you. Thank you, counsel. The case is submitted