thirteen bankruptcy various amended schedules were filed by the debtors plaintiff harriet scuse me on may fourteenth two thousand and nine the debtor's loan charlie converted the bankruptcy from a trial court erred in two respects one by invading the exclusive jurisdiction of the bankruptcy court by finding that the plaintiff voluntary conversion of her chapter thirteen to the chapter seven was done in bad faith we also contend of the facts do not support an inference made by the trial court that the plaintiff deliberately concealed her cloying and against the defendants from the bankruptcy court and what was your best case of the proposition in this court in the trial court in state court we have to yet well judge i think that to answered your honor to answer your question i believe that one of the strongest cases that supports the plaintiff's proposition is the jaeger case your versus clear clear when products and that was a similar situation where the court did not make a determination that because they claim a post petition an action was not listed or amended schedules were filed that there was not bad faith in the key here is the bad faith the trial court in this in our case i made a determination that just strictly based on the pleadings that were filed in the bankruptcy court well judge except the third that exception that's covered with regards to inadvertent omission and that's the situation here the oem mary berry when she originally spoke with her bankruptcy lawyer talked about it she's not a lawyer she's not prove the motive of the other side which is a little surprising but there are numerous cases either not so and if something isn't inadvertent in this context only when the debtor either lex knowledge of the undisclosed claims which surely she she found out that it was an issue that wasn't listed that's when a worker's phone calls were made and ultimately leave a bankruptcy lawyer went before the bankruptcy court seeking to amend the schedules to add that claim inside of his for the proposition where somebody bought an argument that some court somewhere so that's efficient to blame here and see where it's not i don't want to i don't want to come off your honor saying that she's blaming her bankruptcy learnedly she is of i believe that that response was based upon her assumption that in discussing the matter with the bankruptcy counsel that it was taken care of so choo choo wasn't attempting to mislead the trustee she was under the belief at that point in time that everything had been taken care of well listed on the schedules that she had this is the question was did she have anything that was listed and it was not listed on the schedules and this was not listen any special event time wasn't it was not part of it at that point in time she believed that it to because she had conversations advising her counsel or bankruptcy counsel that she was involved in this accident going back to my question can you cite a case where somebody bought there or should we be the first court in the land to say it's ok to say your lawyer  intent is one of the in the intent is one of the five protests yes judge i believe i believe that that is that is a standard and we should not use a standard of in britain which would only include where the claimant the debtor rather just lacks knowledge playtex congress conferred its list of jurisdiction of the bankruptcy courts to make terminations about bad faith and bankruptcy meanders in the case before you you have a you have a judge brewer you have a state court judge who's making that determination a northern just strict bankruptcy case when the debtor moved for sanctions for violations of automatic stay by a creditor the bankruptcy court determined that the state court had parallel jurisdiction and they allowed a motion for sanctions to be heard in state court and the court that the federal court reasoned that state courts do not possess the jurisdiction to entertain and decide upon questions an issues a federal bankruptcy law that congress granted that fourth to file amended schedules actually three times twice she went before them to file amended schedules also one time to going to reopen the estate to list this case so there were three opportunities or for the bankruptcy court to make a he wants you want to proceed what happens in state court is determined by the state court which is where mr purdie filed and if we agree with you and again not just from his fur even every case from free ons that anytime somebody leaves off act to decide what effect the finding of the state court action in violation of bankruptcy procedures has upon state proceedings so that your case so can you cite a case that proposition or this is occur f plaintiff i would submit to this this panel that the defendants didn't meet their burden in prosecuting the motion examining all of the elements but that the issue of fact that were raised by affidavits that goes back to the home that goes back to the argument of with we go sit in the burdens that there was no there was no intent there was no intent to deceive the court and take advantage please the court we are here today to defend the ruling that was made by judge brewer and summer of two thousand and ten as a procedural matter the issue was brief completely and we had a first oral argument on it and at the end of that first oral argument judge her asked for us to specifically brief the issue of bad faith as it applied to illinois case law in our second set of briefings both attorneys have only been able to find a daily case as persuasive law that is on point with respect to bad faith and traditionalists stoppel as far as illinois state law is concerned so both parties decided to use federal law as well at the end of the arguments the second time the judge held in favor of us and granted summary judgments only at the time that the pla responded in the second set of briefings which was to be limited to law only did she turn over the two affidavits and in our oral argument we agree that those affidavits were untimely and the judge agreed with us although she did still review the content of both of those affidavits the ones they were not stricken but in her ruling she stated that she refused to use them in her decision  affidavit of the plaintiff and that her attorney did not remember whether or not there was any conversation as to whether she had mentioned this to them what is the matter i'm sorry would it matter if there are federal cases we would turn his signed  and she told me i told him not to put it on or i do not believe it matters because i believe that there is sufficient evidence here that the plane it had a motive to conceal she listed two other suits on her initial bankruptcy petition including a personal injury suit so she was familiar with the process of filing a lawsuit and being a party in a lawsuit prior to filing her chapter thirteen action she was injured a month after she filed for chapter thirteen and amended her schedules twice before the confirmation in august of two thousand and six but did not list this cause of action now withstanding the fact that she had already retained the plaintiff counsel in that instant personal injury action she converted to chapter seven almost three years later and did not make any mention our mentor schedules again until right at the time where she converted to chapter seven in which case she also did not mention the instant lawsuit or three forty one meeting of creditors she was specifically asked point blank whether or not she had any assets other than the assets that were listed in her schedules she stated  every time she signed off on the petition and on the amendment to her schedules there is a clause in the petition of the schedules that states that she's signing under oath that everything in there is true and accurate to the best  knowledge and she signed off on all of these two weeks before the chapter seven trustee signed off on a no asset finding her plaintiffs counsel sent us a demand letter for a million dollars after we filed our motion for summary judgment she and her bankruptcy attorney moved sixty days later to attempts to reopen this bankruptcy in order to list the assets that was granted she listed the asset however the asset was listed with an unknown value on it summarily the schedule was filed the bankruptcy was closed read you part is that we did not we did not ised we did not have notice of it until the second set of briefings which occurred after the bankruptcy was closed again so you were no we did not receive notice of it no when the bankruptcy court allowed her to do all that at this late does that indicate some sort of judicial approval that there was no visual stuff although i do not necessarily believe that to be the case first and foremost because i do not believe that the trustee had complete knowledge of all the facts that were underlying with respect to the personal injury case including the fact that the trustee was unaware that the million dollar demand existed as the asset was listed as with unknown value when they w was still an open bankruptcy at the time that the motion to dismiss the other action based on judicial a stop all was pending it the your case i do not believe followed all of the elements necessary for judicial a stockpile in that the plaintiff did not succeed in the first proceeding and receive a benefit from it because for bankruptcy was still open she had ample opportunity to amend her schedule amend the confirmation plan and proceed with payments where in this case she had made some payments through chapter thirteen for three years converted to a chapter  seven received a finding of no assets and was discharged in bankruptcy before we filed our motion for summary judgment we only filed our motion for summary judgment once we learned of the fact of her bankruptcy it had not been disclose no also with respect to the shoemaker case i believe that's the indiana state case that was cited by the plaintiff i believe that that case is also an app is that the only debts that the debtor scheduled  filings were the medical that he had sustained as a result of the p i accident but he was on medicare so he didn't have any debt and therefore even though he was discharged there wasn't really any relief for him at that point i believe the most on point of the federal cases is burns burns was a situation where the plaintiff filed a chapter thirteen action shortly thereafter six months to be exact he filed an e e o c charge that was eventually converted a year later to a federal lawsuit at no point in time did he manage to schedules in order to list this assets he converted to chapter seven once again dispositive motion based upon judicial stoppel there the court found that there was an inference of bad faith in the sense that this asset was not listed notwithstanding the fact that this schedule is were amended several times and found that the plaintiff's attempts to try and reopen the bankruptcy later was a situation where it was too little too late and we believe that that is the same case here where months after we filed our motion for summary judgment was the first time that the plaintiff in this case attempted to do anything to list this as an asset not withstanding the fact that her bankruptcy lasted for three and a half legit schedules where and when the motion for summary judgment was before the court she responded with f a day of it's from her bankruptcy counsel and letters and letters and the quote determined that it wasn't a deliberate intentional act in the noun listing of the of the case live time i would make to this court with regards to a council just said is that when