with co counsel who represent the debtor dr roger we would like to reserve a collective three minutes for rebuttal i will use four minutes in addressing the order vacating dismissal leaving three minutes for counsel to address  on the abstention issues all right i'll try to help you out but keep track of your own time as well i'm going to and i know it's a very short amount of time and i've already used thirty seconds and in connection with this matter the bankruptcy court  clearly on its own articulated a number of reasons why it believed that the order dismissing the bankruptcy case should be vacated there was efficient due process a notice provided to the opposing creditor revere the bankruptcy court conducted two hearings the bankruptcy court went through a number familiar with procedural history so let me ask you this it's abuse of discretion review right and your contention is  court that is correct now what about the extensive proceedings in the state court there were a number of extensive proceedings in the state court that predated the bankruptcy and that doesn't really affect the dismissal or are not dismissing the case we believe the focus in terms of whether to affirm the order that we're asking the court to do is to look at the bankruptcy courts in the district courts reasons for vacating the order of dismissal the bankruptcy court painstakingly went through a number of reasons why it believed it made mistakes of fact and law that it did not consider appropriately the avoidance actions that the bankruptcy trustee could pursue to benefit all creditors not just a single secured creditor outside of bankruptcy and so when looking at all of these various factors the bankruptcy court found that it should vacate the order of dismiss allow the bankruptcy case as to the medical corporation d j r i to proceed and that would be for the benefit of all creditors for not just a particular creditor the bankruptcy court also noted in its oral ruling and articulated facts was the receiver was pursuing a claim against dr roger individually in his bankruptcy case that claim was based on a concept of conversion if you will or fraudulent transfers if the bankruptcy was reinstated like the bankruptcy court did then the bankruptcy trustee could pursue such a claim for the benefit of all creditors so when what's troubling to me and i know that the bankruptcy court really sort of laid out what it thought it failed to adequately considered when it initially dismissed the case but the one crown that really wasn't discussed in the record that i can see is the fact that at the original dismissal was really based on an of process that the bankruptcy jurisdiction was improperly in vogue how do we weigh that original grounds for dismissal against what the bankruptcy articulated as its rationale for taking the case back i think we can look to the bankruptcy judges own words where he said i thought this was a two party dispute therefore it was an abuse of process for the bankruptcy case to have been filed but in reality this was more than a two party dispute there were other creditors out there who could have and should be benefiting from the bankruptcy case including the internal revenue service and other creditors whose claims were filed in that the court discussed again if the order vacating dismissal war set aside the way that briefs are extensive and the record is enormous this really is a simple matter almost six years ago dr roger found himself in a county jail  for not having complied with a state court order and he thought that he had complied with everything that he was supposed to do and he did everything a state court attorney had asked him to do and still he found himself there and so he waved his white flag and he decided voluntarily and to file a bankruptcy for himself and two entities that held all of his assets so that he could pay all of his creditors through an orderly  liquidation that's all that this is really about let me ask you this that we are our court has some very skilled mediators and we see cases like this that just go on and on and on and if the relief that the other side seeks a majority of the reef that your side is seeking to reinstate the bankruptcy proceeding this could go on and on for another ten years would it make sense for you guys to from your perspective to meet with our mediators office to see if once and for all this can be worked out well you're stop getting paid we can all move on i was a very good question we've already been  to two bankruptcy judges for mediation and we've been to a private mediator retired bankruptcy judge my client has turned over all of his assets he has nothing left and  i don't know that we would absolutely love to settle the matter and not continue this litigation for another decade but the only thing at issue at this point now is his discharge you know if he was getting his discharge he wouldn't care about any of this i mean we're dealing with the reasonableness all this is about is a term in the reasonableness of over four million dollars of attorney's fees that were incurred incurred before the bankruptcy court  revere would like the state court to determine that because the state court has no idea whether the actions before the bankruptcy court were reasonable so we could go to mediation but my client has nothing left to give he turned over more than four million dollars of assets to pay a claim that at the time of the bankruptcy even if you included the end reasonable state court attorneys fees was about two million dollars and we've liquidated nearly four million now and unfortunately that's not enough and so now my client is before the bankruptcy court simply fighting to get his discharge and and none of this in the end will really matter if he gets as discharge  right thank you thank you good morning honors me and peace the court freely and associates on behalf of a tele and cross appellant revere financial corporation these consolidated appeals asked this court to decide to issue is the extension issue and the vacat permissive abstention order second the bankruptcy court committed a reversible error under tucson the states by refusing to abstain based on the bankruptcy courts concern of the impact of reveres claim on rogers  a state and third the bankruptcy court incorrectly weight the tucson estate factors in terms of the vacate dismissal appeal for four reasons this court should reverse first as a matter of public policy this  allow the bankruptcy court to have unchecked powers to compel at the time it was a non consentual non debtor corporation back into bankruptcy which substantively affected all of the creditors rights one year later when no creditor asked the bankruptcy court to do so when the trustee didn't ask the credit of bankruptcy court to do so and debtor couldn't consent to doing so second a mistake under rule sixteen means a mistake at the time of the decision not as a mistake that the court time his decision was correct the only just to be clear that you're staying on your reading of will sixty be if it backed bankruptcy judge or district judge whatever the situation might be says boy had i known if i had known then what i know now i wouldn't have done that you're saying that they can't go back on a decision yes the ninth circuit in fantasyland stated that subsequent changes in fact after a decision was entered does not constitute exceptional circumstances or mistake under rule sixty the supreme court help the subsequent changes in law after does and a decision was entered does not constitute a mistake or an exceptional circumstance under rule sixty the purpose of rule sixty is not to disrupt finance finality and so it can't be decisions that someone regrets later in hindsight if the court allows this to happen then a year two years can pass all of these unforseen things can happen and if there was no mistake at the time of the decision if there was no misunderstanding at the time of the decision all of the cases that talk about mistake talk about well the someone made a misrepresentation there was a fraud at showing a fraud at the time of the decision or there was a misinterpretation of the law based on a misinterpretation of the fact at the time of the decision all the cases talk about the time of the decision the bankruptcy court here all of the factors for dismissing the bankruptcy in the first place it was not a mistake nothing ever changed the record never changed it is a two party dispute between the chair and riviere there were no assets to administer except avoidance actions all of those assets are wearing cumbered and indeed the trustee abandoned all of those but i remember the transcript many times a bankruptcy judge said well i didn't appreciate this would happen or i didn't foresee this would happen you're saying that's just under sixty there this is too bad there was a nothing that the bankruptcy court could the only thing that the bankruptcy court said he could not foresee was that the receiver would assert a claim against roger in roger's bankruptcy the receiver has a right to assert a claim in another bankruptcy that's not that's not an exceptional circumstance and that's mistake at the time of the decision the receiver had a right to assert a claim against roger at roger's bankruptcy but if the if the bankruptcy judge didn't appreciate that at the time and only later appreciated that there was this issue wouldn't that be sufficient grounds for the bang for judge to say look i made a mistake i didn't i didn't appreciate that the receiver fees are going to be what they were but the receiver species is a state court issue that's under the state court's jurisdiction it's very similar to what happened in tucson estates where the bankruptcy courts main focus was the extent of the how excessive the bankruptcy court thought the receiver's fees was and it was already substantial at the time the d j or i filed bankruptcy the the fact that the bankruptcy court was concerned with the receivers fees is not necessarily an unforseen circumstances and i don't think that will sixty allows a court one year later to see what happens see what unfolds and completely disrupt finality based off of that this is not just a regular order that was vacated that allows the proceeding to proceed this is an order that changed jurisdiction that completely divest the debtors assets into the estate this is something that the creditors are moving along and they could they could collect against the debt or the state court action was moving along and then all of a sudden it took it all away and created a bankruptcy estate it's the last thing for four years and nothing has happened except when when the bankruptcy court vacated the dismissal the fact conclude everything in state court are there still other pieces of state court litigation remaining there still pieces state court litigation may need remaining we the receiver was well still needs to terminate there we still need to enter judgment and then determine attorneys fees against  whatever the attorney's fees were to be added to the judgment against the terror i in the state court so those proceedings have been ongoing correct during the pendency of this appeal  so we yes it has been so what you're asking for is to put this piece back into the state court what we're asking for is to reinstate the music think proceed to have the  seat dismiss for that we can go move forward with d j or i and collect assets finally i mean you you want effectively to turn the clock back to right before the bankruptcy judge did we did in this case that's that's correct your honor i mean that's correct your honor and the effect of it all sorry that's all we're asking for is the abstention order to be affirmed to allow the state court to determine the issue of the fees and receivership the receivership fees and attorney's fees that should be added to the judgment against dr roger and then for the vacate dismissal order we're asking this court to reverse based off of the legal that the bankruptcy court abused its discretion under rule rule sixty because there was no mistake as the law defines mistake under rule succeeds there was no exceptional circumstances as the law defines exceptional circumstances and and all of the grounds for dismissal there were just nothing that change or i'm sorry couldn't understand the question i think i know where he's going here that if i may judge gold you're kind of cutting it out a little bit but i think your question concerns on the abstention issue in this case i think he's referring to isn't there a statute that specifically says that we don't have jurisdiction in  situation and that's our position is that under thirteen thirty four d expect express the states that the ninth circuit court of appeals or a court of appeals does not have jurisdiction to review the merits of a permissive a stench an order and then i and then show this ninth circuit in stayed the same all and if we may we like to split our last three minutes with me getting two minutes in council getting one minute so no make this six especially fast no purpose to be practical here no purpose would be served by dismissing the bankruptcy case again the bankruptcy estate upon filing had a bunch of accounts forseeable the trustee after the order vacating dismissal was entered abandoned those receivables meaning they were free to be collected by revere or the receiver whomever they were no longer assets of the bankruptcy a state where the bankruptcy trustee has been doing since the order vacating just missiles entered is filing in pursuing avoidance actions in the trustee is already prosecuted a number of those we've already settled so we've already had other orders and you know recoveries that were obtained just missing the case doesn't benefit anybody under those circumstances allowing the case to remain in the trustee to distribute those proceeds pursuant to the bankruptcy code is what makes sense in this particular circumstance to address your honor's request about our inquiry about mediation i don't know if mediation at this time would serve any further purpose given the prior efforts  mediation and in the reinstated bankruptcy case the bankruptcy trustee actually entered into a global settlement with revere we were standing on the same side of a left turn and that situation the bankruptcy judge denied approval of that compromise that we are still not sure that further mediation would ultimately put the parties on the same page and then i'm down to one minute so it's a big thank you  thank you i just want to address two issues as to the statute that says that the court of appeals is not have thora to hear the appeal regarding the discretionary abstention the district court issued its order in excess of its own authority so had it waited till there was a appeal of a final order that was actually appealed with the time none of this four years that's gone on would have occurred and we would have order to correct that error because nowhere else can you go whether whether we treat it as a writ of mandamus mandate or under the bellman factors there's nowhere else to to remedy that so and the other issue i wanted to address really quick