time to hear clerk versus the boeing company thank you your honor may please the court first i was just notify this morning i don't believe it's relevant but within the past week or two the plaintiff succumbed to his  illness i would say on the issue before the court there i believe of course that practice would have been for the plaintiff or plaintiff's bankruptcy attorney to immediately notify the bankruptcy court upon the diagnosis story as your honor it would have been the summer yes but the the trustee says less payment was made in december and on the chapter thirteen report  in august of two thousand and ten and that there were sixty months of payments due therefore mathematically the the last payment had to have been july when the plaintiff in his in his after affidavit states that the last payment was due to the trustee he states in her affidavit that the last payment came in in december and then in her final report if you do the calculation it goes to february so the trustee was not persuasive and the problem here is that in this motion to dismiss the trial court looked at all of those facts in the light most favorable to the to the movement seeking seeking a dismissal but i think the most concrete is the opinion of the standing trustee in the district of connecticut nothing trustee says it made no difference that is correct that is  largely irrelevant to the bankruptcy or de minimus and yes i mean if if creditors had known could they have come in during that one year period and asked for a revision  terms would not have been possible well i can't say it would been totally impossible but it would have been unnecessary impracticable and extraordinarily unlikely because  the there had been a one hundred percent payment under the plan all the creditors who made it to the plan from the from yes that's true but the eight hundred thousand dollar creditor didn't or all of the creditors had the responsibility under bankruptcy rule three thousand and two to file a proof of claim within the within the proof of claim period the home depot which is the missing amount debt which the plaintiff believed he had on the home depot credit cards was clearly listed on the initial of bankruptcy  petition by the time of the plane home depot had had ample time to file a proof of claim it didn't you know have any reason to think that all of the money would be used up   also you know tangentially for that reason do novo review is appropriate here i do want to say one thing whether a debtor informs promptly his or her bankruptcy counsel of a new asset or a new potential claim is also in this circuit treated as as highly relevant to the overall analysis and significantly under the plan which is a four one four four four the debtor is informed by the court approved plan that the plaintiffs that the debtors bankruptcy counsel is in charge and has the responsibility and will be the one construing the plan all question should go to the bankruptcy counsel so the the debtor had all the reason in the world to believe at the time that by promptly and in good faith informing bankruptcy counsel ba advantage not sure we're talking about evil doing were bad faith question i think is is you somebody involved in the bankruptcy process who was getting shafted write this and i take it your position is nobody was you know it i think it's pretty clear that nobody was and and it's an important point is in contrast to this where the risk of an inconsistent result the risk of an effect upon the integrity of the judicial process has to be certain that is an element that this court's jurisprudence has added to the may please the court martin gainer i represent the boeing company i'll be arguing for the other cola pelleas this morning the district court properly dismissed this case on judicial stoppel grounds how it's important to understand and this is pointed out by this court  case judicial stoppel is primarily designed to protect the integrity of the judicial system in this case and in particular the bankruptcy system is not really geared as much towards fairness among the part i in this case how can you stand there and argue when he told his colmes when it virtually makes no difference when to say that vince has an effect on the bankruptcy court when the know how can you and when the difference between what is involved here is de minimus and to this person potentially millions of dollars ok you stand there in saving the equities are on your way if it is equitable does your honor here's how and that's why i started with the statement i made this is about protecting the integrity of the judicial system although the district court's decision predated this court's recent decision  brother admits that he was supposed to disclose the claim prior to discharge the first element is that he's got it let's go to the second element right the second element the adoption and was adopted by virtue of the fact that he knew for years counsel issued the discharge issued the discharge and as my brother just said if this claim was if notice of the claim was provided if the schedules were amended he can't say and i agree with him that some of the creditors for example home depot may not have taken some action and that's what about the trustees sleep the trustees statement is irrelevant here for the following reason the last element in b p illinois as your honor s is sometimes invoked is unfair advantage the plaintiff here and i had greater honor it's a very difficult case but obtained an unfair advantage because he obtained a discharge without following the disclosure rules and to answer your honor question the reason the trustees affidavit does not matter is that we can't get into retrospective analyses in a district court of what the consequences may or may not have been if the disclosure some of the if you will doctrine should we talk about the possibility that might be prejudiced but we can't say what it would be because we wouldn't have been paid any sooner if they had gotten in and said that possibility of prejudice without any overwhelms the fact that somebody who tells his lawyer about this in and that would will dr i'm still respectfully or honor i disagree for the reason i just said which is i do not know why my schedules were not updated in a situation like this where the claim is dismissed one would expect a false an explanation of the mistake or inadvertent from the lawyers involved the bankruptcy lawyer or the lawyers handling the personal injury case who may be the lawyers and that since he is was paying and had paid every dollar he owed on every claim that was filed plus interest and fees it would just be spinning  wheels to file something saying that he has an income we claim we may never collected dime and possibly not collect anything until long into the future then we would expect one would expect some kind of affidavit from him explain that for example that in the end that's who he is it would have been better to do it but the consequences of not doing it but you're suggesting are so out of proportion to points on two points on that your honor one the lady case that's a district court case that the appellate submitted recently is instructive on this point because in that case the bankruptcy lawyer testified that it in and do anything so what could he do other than tell his lawyer is what more could he do he could have done anything more but his lawyers who knew for at least a year prior to the terminations of the bankruptcy did nothing ironically if you look at the appellant's brief when they argue that the couple of defendants who didn't join in the motion should be dismissed he said look they saw the motion they sat idly by for a long period of time only reasonable conclusion from that is that it's intentional there's no point in the lawyers if you talk i understand but the point no but that's the logic applies the same as they knew for a very very long period of time in for whatever reason elected not to disclose claim you just said before for whatever reason one reason could be they would be nothing but the spinning wheels in the filing the papers that would make no difference according to the trustee respectfully if that was their logic it is inconsistent with federal bankruptcy law and if that was their logic then the plaintiffs will have recourse against them for that mistake again it's a difficult case i respect that but the issue here is judicial stoppel is made to protect the integrity of the judicial system the courts undermined in any way because the plaintiffs received a discharge without following the disclosure rules and that means that you  have a closed bankruptcy case and now in a subsequent u s district court case there's going to get into this analysis about what the possible consequences could have been in the bankruptcy case about a closure that is not something that helps the integrity of the bankruptcy system respectfully it undermines it thank you you thank  that very well and i'd be very pleased to rely on your authors to protect the integrity of that you're argument basically since the people who did object have no real play you shouldn't be treated any worse than they are that arose pre con from ation as opposed to in the present case post consummation and also in p p p it was important to the to this court that the plaintiff had disclosed other suits but for whatever initial argument to cite to the page of the appendix showing that the first payment from the point of was due august nineteenth two thousand and ten and that page is appendix page fourteen forty nine fact intensive that's a point that defendants rely on heavily one interesting corollary to that is that the plaintiff's deposition was taken by the defendants in august of two thousand and sixteen after at least one or more of the defendants but we've that there was had their admin a bankruptcy you warned you i think reopening in the bankruptcy court how would that work i but i'm long and how long would that take your honor i am really not steeped in bankruptcy law i don't know i just know that the bankruptcy rules officially steeped to know what you're suggesting in your brief can be done i'm not sure that it i'm not sure that it can be done i believe it has been done and i know that there has been done that i guess it can be yeah i know that there is one rule saying that the case a bankruptcy case can be opened until the until the discharge occurs is your yes and so yeah no i understand that you to agree with it i think it was just a possibility that seemed like a good idea at the time thank you your honor thank you we will reserve decision