the case and it's not supposed to be inflexible correct was it's are exhaustive factors but of course the cases before you in the facts before you make it seem like everything is inflexible it's exhaustive if there i'm here to tell you i believe that you are right and i think the supreme court was right and i know it's gotten close on bankruptcy it's almost like we just all medically as a matter of law say there's a motive to conceal but here it is different and we're here in mr long state hoping to court cost to get here because we are different we're at the very other end where most of the other and we are close problem measure not quite at the other end because it is fair to say in this case it seems to me that mr long was the beneficiary of the bankruptcy system in the sense that he's not paying didn't have to pay interest on that debt and course when you file a chapter proceeding like that there's always some people who just don't file any claims which is what happened here so those get wiped out and so you do get a benefit even the one hundred percent pay case so he got a benefit from this case no question about that i don't see there's any real and room for argument that oh you're welcome to try that way would we consider that as part of the the inflexible prerequisites i mean his benefit here he would have paid interest he had money to pay the interest but the thing that got filed he thought was to pay off creditors that's really clear everybody talks about that and then not to overstate it but the standing  interesting in his case was riding all through these years that if you have a hundred percent creditor pay plan that there's no motive to conceal it she puts it professional journals and i communed to do better than i can say the declaration of frank monroe a former bankruptcy judge in wester district and it said the appellate one o four to a judgment row goes through all of these factors he said look i recommending here i say that there should be judicial stoppel but that's understating there's no additional bad conduct here like there was a want watts's out of control lawyer is all filing cases for the trustee and timelines are missed there was bad faith there in the in the courts they owned it and they should've this is not that i mean the other side and i learned counsel over here are going to say some things but the facts paid home didn't know he had to do anything else and i know he has a duty to report we're not standing up there saying that chapter thirteen that or don't have a duty report we know that but i would point out that solutions came out after his you know discharge and was a little bit unclear with the professional writing us and judgment road acknowledges that he said you know in the western district in texas it's just generally understood there was no motive to conceal if there's one hundred percent plant so i don't want to get to splitting hairs on whether one hundred percent plan because everybody thought it was and we're talking about the intent of the of the better this is debtor trying to get away with something you know on where i come from he's not trying to get waivers and he wants to pay everybody you know he could have his best thing was to file a chapter seven time flush it all and start over he was working for the client over here but he did it by god i'm a pale my debts and he thought that was what was fun so judicial stop i guess i'm saying should be flexible enough to look at a man who has good intentions as the better the that and watts is all over fast and loose so best not here none of those things are here we are at the end and mr low should not be judicial stop in this case and i realize i'm running against almost a tsunami of previous bad fact patterns i mean reed is you know the flagship case if you will but it was just awful and these people have claims that hide it in the open file before the case you know the bankruptcy case is filed awful that's not here now i know that this court is not going to probably put in an opinion that johnny after that well paid johnnie ray long didn't know he thought he had a hundred percent pay plan and that was that ok i can understand how that might happen but he had a lawyer what was a lawyer doing lawyer thought the same things  just as a matter of fact that the standing trustee to him remember this is over three years that she's writing this stuff it's not like that oversight i've ever had an oversight in my brief and you're going to catch it and then i can apologize to you she wasn't she just says there's no motive to conceal if you paid everybody where's the window there really isn't a windfall i understand and i greet you that there was an interest paid in this thing and one of the times a credit submit but that doesn't mean that mr sloan didn't have the right intention and he wasn't seeking to avoid anything he was seeking to pay everything so we go back through supplying all those cases and i don't i mean i don't think anything you've written judge kenya's contrary what judge barksdale talked about he did go a lot to the third circuit cases which do want some bad faith or they didn't want some kind of  wrongful intent displayed and i guess it's a nine hundred ninety nine case so it would still be fairly modern even though we have an on bumps issue and in lover says tyson what if you find you've found that love didn't submit any evidence i mean you know the court beloved looking judicial stoppel you know said we haven't submitted any evidence they've made a shilling and you've got to show you know that it was inadvertent so that was a failure prove i don't think lovers astonished that hurts us and it shouldn't hurt mr long i don't want to skip anything else on judicial stoppel if you have anything that i do comedian judge frank monroe's declaration and the reason is because judge of connor had it and judge o'connor is wonderful judge but i think he believes that up here there's a summary judgment standard and if a bankruptcy pops up anywhere then it's automatically judicial stoppel i think that's what he thinks at a course is probably wrong i believe it is from your thing that was significant here from my standpoint speaking just for myself is that the court did ask the trustee do you want this asset or not and it seems to me that's a critical question because every time you stop a debtor you're also a stopping  know they're shown what could turn but all those bad back cases down there that happens but mr long here responded right away in a minute in schedules and you know this is a big case i mean the united states government has a big stak case and she called him when she found out about this i mean that's in the record but she she's admitted she called him and she was on the stand by the way in austin when she said that it's just their relationship she can't get out of relationships but she has not written his judgment rove says she has a written anything that retracted those three years of saying he she got one hundred percent plan there's no motive to conceal and that really is logical s so i'm not pointing anything or say any particular lawyer because the gas on the other side and also in dallas are my friends but they still have better relationship let me say than we d just distill it one more time please for give me some for those who are not experts if it's true i mean i agree that it's possible that the court could have found the other way and we would say that well it's almost one hundred percent but there's this interest and so it's within their discretion to not find it under the circumstances it's not a sneaky person under some of the previous cases comparatively speaking but because the court that's not with the court file and why don't we just have to why don't we have to find no abuse of discretion here i mean it just seems that the quality could have gone the other way and there's lots of good reasons why it went the other way didn't and so if we truly believe that it's within the discretion and that there is some this for this equitable doctrine some the court should look at all their co factors should we respect the determinations that are made once they're made when they think it's something it's not and not angry with you that it's not a per se i agree with you on that that's not per se in that with should fit but what is wrong if the quickest recorded in a five three possible motives and we can we can stand here today and know that interest isn't the issue how can we say that it's wrong you have to i think you do need to look to tell to the circumstances he was inviting in the trustee to give her opinion the trustee was not reappointed rules either one of the case was still closed and he in the asking for another week or two so that we could get it get sense is there anybody in world that would say i want to pay all that fifty thousand dollars he's a working guy we don't have in his pocket but i want to see if i can get away with not paying an interest that's just that didn't happen and there was there was no evidence of that and we're talking traditional style and we're talking what was his intention did he have a motive to conceal this guy want to pay it all he did want to conceal anything he's never comes the only thing in the court didn't have a record in front of a that showed there was any intent to conceal again as i ask judge king of ask you to reach judgment rose declaration just quite specific and own point and he in the just say as i don't see anything in this record that would justify judicial stoppel i've got a minute twenty eight left kind of so i also do want to say that the judge did not allow us to amend our pleadings to conform to the evidence after he had ruled only to have the six motion as to novo and he said well yeah you don't have any allegations that these representations are vacations and so on are conditions of payment well we did we went back and we submitted it two days before his scheduling order suspend state and the judge denied our motion for a late he's the one set the scheduling order and he allowed it he's allowed motions for later that day but he didn't allow us to conform to the evidence and  we have in our written pleadings all the different paragraphs that repeated the conditions and prerequisites payment plus the evidence the contracting officer for the year for said that all the representations certifications about being accurate complete current all of those were conditions of pain and he just said it in his testimony then the judge refused to allow us to man wrong and rescheduling order wrong in a r fifty hey and we would ask you we are hoping and believing that you will reverse what's happened in this isolated incident and that when we get back we'll be able to amend our planes to fully play to conform to the a different judge might have not held judicial stop or where they would've but whether this was so far out there to be an abuse of discretion and truthfully it's not only not far out there it's really heartland this court's guidance has been  long as there is no knowledge of the facts underlying the claim in a motive to conceal it's appropriate at least absent other factors that might come in to have judicial a stop on and that's really interests of their own i don't think it's it's at all trivial let me just sort of start there were gotten interest for five years on twenty on sixty thousand dollars twenty thousand dollars of that debt was high interest debt and as the bankruptcy court in schoenberg explained amused the contract rate generally for interest so if you look at that you're probably talking you know somewhere in the you know six to ten thousand dollar range if you look at this court's decision  n jethro that case involved eight thousand dollars of unsecured debt that the debtor got away with not having to pay by not scheduling his assets so i think you know one of the things that i think has been a homework of this court's jurisprudence in this area for example is not saying that a debtor can get away with a failure to schedule and not have to do so stop if he just says you know puts in an affidavit saying i didn't it now the interesting thing in this case is you didn't the he didn't think he had to do it line of argument has been tried in this court many times before him in different flavors so some people have said i didn't think it was a good lawsuit that would have been superior crudes some people have said i just didn't think i had a duty to disclose post confirmation you know that would have been solutions every time that those kinds of arguments of i didn't think i had to have been tried this court shot them down and said it's not relevant what's relevant is your knowledge of the thread the facts underlying the claim there's a lot of discussion here by posing counsel about articles written by the trustee here the chapter thirteen trustee talking about the application of judicial astop when one hundred percent payment plans there's really two problems with that one of argument one is it certainly can't be the case that his knowledge of whether he'd get punished later with judicial a stop all for not having disclosed everything he was going to disclose is a factor that this  use and is going to say well gosh he knew he could get away with not disclosing it and liked it to display stop so we're going to excuse him for not disclosing and that's to me kind of a silly argument and secondly when the court when the trust talks about one hundred percent repayment plan that's one hundred percent now this might be your honor judge all right this might be ninety two percent or something of that sort but it's not one hundred percent payment plan if they haven't paid back on two percent the fact is he got away with not paying his creditors everything that was due in answer to i think it was your question judge king i think you had asked and if i got it wrong who asked the question i apologize but why the trustee decided not to come into the case actually it on footnote seventy four of the reply brief that opposing counsel submitted on long has conceded that the reason that the trustee didn't come in is it wouldn't be worth it for the that frankly the cost would exceed the benefits of coming in now mr long has wanted all along for the bankruptcy to be reopened and he said this in his brief to the bankruptcy court so that  could be reappointed and could abandon the asset to him now that's of course off base on lots of grounds as this court held in superior crew boats you can't have an asset abandoned in this kind of a context to the debtor that the debtor can then see one if the debtor was judicially stopped to begin with so that whole theme both why he wanted to do it really wouldn't fly the real reason that the trustee didn't do it is it wasn't worth it the reason the united states hasn't intervened in this case it hasn't been worth it for the united states and there's a lot of argument that mr long is made that it was wrong for the court to only give a week to the trustee has also argued that she wasn't reappointed at that point so she wasn't really the trustee as the district court found that's none of that is really his issue i mean we disagree with him on all of it but even if any of it were right it wouldn't be his issue because he's judicially is restocked regard who ultimately pay are the creditors and asked the representative of the creditors do you want this or don't you is important oh i think the judge should be complimented for that your honor i didn't mean to suggest anything different all i was saying is gins and in love what happens with regard to the trustee and here you've got a trustee who didn't want to come in but that's a separate question entirely to whether the debtor i don't think it is a separate question i think before the judge draws the bottom line and says stop cook dad the judge needs to think about the trustee and the other credit and the creditors and that goes into the decision that informs whether you're go a stop or not mean you can say you should have disclosed this thing and that's bad but the question whether we're going to a stop you or whatever we're going to do about this whatever the bottom line is is a function  art whether the creditors should get the benefit of this thing ok ron i think we're saying the same thing but perhaps in different words there's no doubt about it that it's an important consideration whether the creditors get paid and how the district court handles the case has to be with an eye to that question my only submission on that is that regardless of whether the creditors get paid if mr wong should be a stop personally then he should be a stop in this court explain that in crude votes when he said it was a band in to him this court actually explained that in the in reading and influence where the court said and if the suit is carried on by the real party and interest the trustee and the trustee recovers for the estate if there's excess dollars left over they go back to the defendant which said that in reading and in influence so kind of regardless of all how it all comes out it doesn't go back to mr long if he is rightly has stopped and he doesn't get everything out of it that was my only point not to suggest anything about the creditors  enough independently number one he had already had an opportunity to amend to cure this very on deficiency and he had failed to do this court's decision spicer that would have been enough by itself secondly it would have caused three different types of prejudice first of all because he wanted to seal the in the third amended complaint for two months that would have caused the cortef to push off all of the trial schedules and all of the briefings gives between then and trial which  only going to be six months away secondly it would have disrupted an already pending summary judgment motion in this court has held that interference by by amending you know sort of belatedly would say if you're going to my posing counsel is arguing that it wouldn't have been futile that in fact he had enough in the third amended complaint the problem is what he did is yet a whole bunch of invoices adding a whole bunch of invoices doesn't and added to a demonstration of  that the certification that he's claiming was false here was a condition or a prerequisite is what this court uses in his terms to payment you can have all the invoices you want and it doesn't have a factual basis  that necessary element and that's why he failed and that's why the district court held that he felt safe got three reasons all of which were sufficient the court was by no means acting beyond its discretion in refusing to allow submitted to cure what the court's ever shortages we didn't agree they were short but we put in their citations to the contracting else or of the united states who said that these representations and certifications w conditions of payment i got his testimony in the exact words so counsel's mistakenly wrong and if you look at our motion we actually cite to the testimony in the plaiting we did not want to lead judge o'connor have any room to move so we got the evidence in there is whale and that was our first opportunity to respond and i can just say that you know lawyers i know when the judge says you can submit a motion to me an summary disposition motions were due to be a certain date one party did not have to go by that date was the other party didn't have to go by that date it was i'm just saying proceed really it was unusual that's all so that's no good and he's using wrong standards of law he's applying the law improperly to the facts and clearly erroneous as we know or piece of discretion is not free of legal review and mix questions of fact and law are subject to your review so you have a lot of opportunities to do that the judge king is right sample what his finances through the state i'm not proud of it it's painful but i will tell you that i and my client jr along whomever it attempted to deprive a creditor of what they were do will take this to the end that's why we're here we were weeks before trial when this surprise  and so we're here we're ready to go do the united states business i'm ready to the business for mr long and the that the court here is absolutely correct it's just not believable that at the time he thought his plan or any time he wanted to in the way the interest that is just that's almost of no moment it's an important amount of money that we have tendered to the bankruptcy court that for many recovery we will pay the creditors we will pay the interest we will pay the trustee and the court now has the motion to reopen the bankruptcy on hold until you prove and as for the united states not coming in the trustee made that comment also  have since council invited me to inform us a usa scott hogan who's the civil dest chief down in up in dallas said we do care what happens in this case we we have not disregarded what happens in this case that we are in a real world they have to sequester world i'm capable of trying it on tape a bowl of financing it and they made a decision to let me do that that is not i'm not interested in he call the trustee on making that comment so let's not get into the middle of all of this that the u s doesn't hear us here these people made all their money charging commissions on work done by the people that's what happened here and they you know ninety percent of their six hundred ninety million dollars was charging the commission somebody else doing the work that's not have contracts work in the contract officer said it was outrageous that they were making up to forty percent on the contract with mr long being told that to bid him fight for five and a half percent this is not a close case or justice these are slick as an austin with their feet up on the desk or simply charging commissions and i made the senior financial person urban asked i'll admit to it she said oh i've never thought they were commissions until i hit her with her own e mails