court's decision to nine city mortgages motion for relief from the automatic stay under section three sixty two d one for cause that the bankruptcy court held that caused not exist because there was some equity in the property and because there were payments being made according to you a post petition confirmed plans and and the city did not contest  the the equity in the property that's correct your honor the your honor i believe that under three sixty two d one cause for relief circuit has held that a violation of the terms of a plan is cause for relief from the automatic stay on that court cited another case we slur which i believe your honor decided that in the face of an argument that there is activity that that the equity analysis is not necessary unless you're looking at adequate protection in this case citi mortgage believe that the court could reverse reviewing this appeal viewing this court's order sorry the bankruptcy courts order the nov or under an abuse of discretion as i said this isn't about interpretation of the statute three sixty two d one and word cause and as i've said this court has decided several times where they filed this petition in two thousand and nine the court confirmed the plan without any objection from the creditors in september two thousand and nine and the plan provided that payments sorry that the debtors would make post p directly to citi mortgage inc outside of the plan outside of the plan i suppose as a sort of colloquialism but it really means pursuant to a plan the confirmed when and the court denied the motion for relief based on some equity in the property its determination that there were some equity in the property and that the debtor had made some payments although at times that the court calls it consistent payments i would argue that it's not consistent payments over the past fourteen months the court went on to say that six or eight failures to make payment p sorry failures to make payments in the past sixty eight months before a motion for relief that might be cause for relief but where there's been payments made during the life of the plan recently  this makes sense because a confirmed plan is binding on all parties the courts have said that it's race judicata of the issues of adequate protection it's is due to the creditor according to the proof of claim and and i think even if this court reviews for abuse of discretion the court should reverse the bankruptcy court because the the court made in an erroneous finding of fact and that it found that the there was a contradiction between the motion and the affidavit of citi mortgage to the motion decided on you so i'm and with with respect to the determination of fact as to as to whether the facts actually complied with the pleading isn't that a through some of the transcript it's i believe that the court found that there was a contradiction between the motion and the court was concerned about whether funds were paid and they'd knowledge by city and city had said i understand what the court i think i understand all counsel first of the mortgage repeated several times that the statement was that the payments were due for them months of october one two thousand and twelve through mortgages motion were accurate and i don't think that the fact that there were nine payments made in the past fourteen months was was relevant in the sense that we're looking at the total delinquency in and the court did find that there was a delinquency and failure to make post petition payments of eleven thousand dollars it may not be directly relevant to what we're deciding but why did city wait so long to bring this motion i mean this this was not a good track record of payments since the plan was confirmed why wait so long your honor i think it was with the city's discretion to do so they're there absolutely i'm not i'm not challenging i'm not suggesting this it can be a basis for decision i'm just asking to scratch my curiosity which i suspect it's because of some internal review and of its procedures  was it paragraph nine of the motion that was the heart of the bankruptcy court difficulty yes your honor and that says as of the date here of there are one or more defaults and paying debtors post petition amounts do with respect to the note and that's undeniably true isn't it i mean the bankruptcy court even conceded that there were missed payments that's correct your honor the bankruptcy court made a finding that at least eleven thousand dollars was not paid good morning or even gail for the editors in this case i'll be brief you weren't at the hearing it is happening and your client apparently did a very good job judge as you can see from the record below felt quite strongly about what had been represented and let that but what was that in this representation the payments were in fact due for that fourteen and period within it were i think what she was trying to say and i think what apparently got her so exercised year was that the motion appeared to make representations that the debtors were not making payments was ok but ok but wait a minute she was focusing on paragraph nine we agree on that correct ok let me read because i want you to tell me how this statement is false as of the date here of there are one or more defaults in paying debtors post petition where in this motion that that it could that can be construed because i've read this motion i'm not following how there is a misrepresentation or a statement that there were no payments made by i think which is looking at as they failed to pay monthly payments on the a dead in this outside the plane and during the do for the month of october first two thousand and twelve to november first two thousand and twelve that i think is where the confusion is and the judge was confused about that and my video that will let me ask you this because i think that the construction of the pleading in my opinion confuses the three sixty two d one presentation can you do bank one of the three things i'm about to say that for the fourteen month period only nine payments had been made and therefore the balance and thirty three out of the forty eight payments were not were made fifteen or not and eleven thousand dollars was acknowledged by the debtor as being in default and lastly the debtor said i can't afford this which one of those is wrong because that's the she said right well which is why she needed you there because she wouldn't say that so which one of those statements does not give cause for relief all think all of them do i wouldn't disagree with you in that respect well then why should we pay attention to interpretation of a pleading when cause exists because i believe the judge is that this should not be applied in a wooden fashion then when the judge is presented with some details here that would suggest that the debtor is acting in good faith yes there's a default she's in a reorganization plan she's doing the best she can she's making payments it but there were multiple default unless i've been doing this wrong for about twenty eight years and that grounds for relief in a chapter seven a chapter thirteen case under de one it is then why are we appealing well i think the question is do does she have discretion to do wh she did here or not and the answer clearly is yes so what you're saying is she had the discretion to deny the notion even though cause wish and because of what she perceived was a misrepresentation in the motion ye and if we don't agree that that was in misrepresentation then that's a problem for you it is it is and if we look at the attachment to the motion which discloses all the payments when they were received and how they were credited so that there's i mean all the information the judge had about when the payments were made came from citi correct debtor didn't have a response and say no no we made a payment on this date and city didn't credit for credit credit for that right so he came in and gave the bankruptcy court all the information about when the payments were received and how they were credited and there was no contrary evidence offered this is true so worst the misrepresentation i'm not saying i mean why would citibank quote unquote lie to the court and then say and by the way here's how we lied because here is the evidence that shows that we did get payments and here's how we credited way quite detrimental to the debtor here in that she went on to say that she felt that that was a pattern that had taken place here and that that was something that should lead to sanctions so i don't think anybody's nobody's question here that they were struggling what she's upset about is here some folks that don't are in a situation where they're needing some relief they're doing they're sending payments that are being received and then  they want to get them out of their house ok so if if debtor were to not make three or four payments in a row as long as she made a payment then we can just ignore the three or four payments that she missed and they can continue to go along and citibank can never get relief from stay no long payment in every now and then because she missed fifteen over a four year period correct that's over a year of missed payments i don't think anybody's arguing about that here if there's a default in and it's presented in a factual doby you're going to show the discretion and not rebut i take it  always thought you were wise thank you thank you both