i'm not going to go into facts here but i would go into the timeline of various events because i think it is very understanding a very important for this were to understand in order to understand the fact that all the elements were not met  element three four and five the element of a what the element off taking two totally inconsistent possessions and the element off also meant in first position and getting a benefit out of that possession those elements are not well is of what you're asking us to conclude pam and this is the fifth circuit by the way there's no there are no decisions from the federal courts going contra this is just the most recent decision that says nine years ago later she gets into a car accident after that she file a lawsuit but then she goes on and conversion of chapter thirteen bankruptcy into tepper seven bankruptcy so at the entirely different decisions which are each within the bounds of the discretion of the trial court even though they come to different conclusions and say each is at least if it's we could have that easily go within this range of where whatever decision the trial court makes right here firm by the public court because it's not an abuse of discretion and in major in place to make sure that people are not lying to court they're not lying to one corner collecting benefit out of the other court that's not what happened there hundred percent of what is owed or they're paying plans where the debtor he's less than that even though the debtor has complete one hundred percent of whatever the plan was my understanding go on it is in  player we don't know if it was a twenty five percent to thirty percent but if it were simply and whatever the percentage that the trustee ordered him to make even so we don't know that but the plan was already approved even before the on the circuit court in this case did not abuse its discretion when they found that judicial stop applied because the record before the court justified a finding that all  period of time it's our position that he stood on the under oath petition in the bankruptcy court and that under oath position that he took was that he did not have an asset so that position is satisfied because he's standing on the original petition that he filed without amending it worked out advice in the bankruptcy court in any way that he had this new claim so to reconcile  is derived from the titian itself to the extent there is an oath requirement in the other position taken in the circuit court we would argue that that is satisfied by the deposition testimony from says well my client discretionary call now if i'm a practitioner of the trial or my look at this and if i hope to prevail with the trial judge to exercise the court's discretion court found the application of judicial stoppel in order to reach that decision would be the abuse of discretion so i do believe it is a two step analysis the manner in which we played it we simply combined that all into one motion are we could have had a and i understand that's an option i thought we simply didn't proceed in that manner and i don't believe that because i think perhaps the best way to look at it is to indicate that it was a combined motion even though it attention we do make an argument also that standing is is an issue here we make that in our brief i do not believe that the letter that was sent by the trustee indicating that they had no more light billing to the trustee necessarily reversed and under documented claims out of the to the value of whatever the security is page to see three sixty six there is a three thousand dollars into your three thousand dollars per figure and in the normal course of events that would not be part of unless the debtor makes a clean breast of it and is honest about what property it is early isn't after wired plame case and in that case you know there is no disclosure just as there is here i don't think that converting your case from thirteen to seven makes a difference because it's the same as follows the federal cases including the coastal plains faced with a lot of citations for example in berkeley seems to go back to over spring up and say i don't know i have this additional coin to pursue for myself if there is an element of this discretion in this case i don't think it matters for the standard review but the on file for about eight months when mr chute fell on october twenty third he's aware that he's in bankruptcy and now he has a new claim but he doesn't demand the spirituals he doesn't disclose of the trust  probably the only person in the world who has knowledge of sets so he doesn't make the investment disposes assets the creditors are short changed and the system doesn't function suppose that gets us into the issue of good faith  be alone with holland and in holland there was actual testimony where larry holland testified i told my bankruptcy attorney about the claim i don't know why he didn't invent snaffles and got himself off by so you think that a matter which the trial court dismissed under circumstances where the property i think under five we won the one is we vested in the debtor and so he becomes the owner of the claim and from that point on all the discussion of standing visual stuff was really  in this case again we don't have evidence that this was a deliberate manipulation this was again and oversight and it is a deliberate manipulation if it is an oversight that's a question of fact that should have never been decided on a motion for summary judgment you mention bankruptcy and notified the defense counsel that he had a bankruptcy proceeding they were not aware that a pending lawsuit was never a court because we never represented the plaintiff in bankruptcy proceedings so that never raise any red flag to  well the fact that then somebody pursue a lawyer to handle a person you lost it just doesn't get filed the next day you really sometime you make demands you see how it goes if there is a fine when you're just failure to schedule his post position claim as an asset of bankruptcy state does not constitute an inconsistent position given under oath those players did not fire any documents in the bankruptcy proceeding after me twenty fifth of two thousand