nine the sixty six motion on two grounds st bites finding being unreasonable and nd by committing an error of law to my st point the bankruptcy courts holding was unreasonable for multiple factors number one the plan was substantially consummated my clients were at the th of a sixty a month plan furthermore they had the ability not only reinstate the case but also pay off the case and get a discharge with a tender of eight thousand six hundred dollars the nd string miller am i right though looking at the you judge opinion and the record there have been a number of instances over the course of this sixteen month clan where your clients had fallen behind in then they had to catch back up again was resolved by filing a motion to defer the default to the back end of the case earlier in the case i believe that was based off his my client's wife being off work in the summer so it's a sort of a different financial setback as the other ones we listed in the case that we believe contributed to this most recent dismissed why didn't when your clients faced more extraordinary expenditures whether it was through for a much larger amount of money to get the cars fixed why didn't they  the information about these financial setbacks which are specifically mentioned in my brief that information did not come to us unfortunately until the end of the case when this final motion to dismiss was up and that's when it that point we use those to try to help us get the sixty six motion granted but we also believe that in addition to the financial setbacks there also was the fact that what makes this case extraordinary is the large amount of money they paid into the case which is fifty thousand dollars with this payoff would be sixty thousand dollars and their general unsecured creditors are almost set to be paid in full but most of that with the exception of these two credit card bills from chase that didn't wind up getting scheduled right to claims by chase didn't get they did get noticed but they didn't file claims so i you know because in a chapter thirteen if you don't file a claim you don't get paid so that kind of goes toward one of the equitable factors is the fact that if they don't get a reinstatement of this case that chase can go after my clients with interest and pursue i'm not sure how that cuts actually because they were they were debts but what i would i would like to return to though is this is rule sixty six dollars it is a highly deferential rule well i think it's kind of death by a one thousand cuts or abuse of discretion by a one thousand cuts it's the fact of how much money they paid in the fact that they're at the end of the case the fact that they navigated through a five year plan and had to deal with over forty thousand dollars in expenses day had also retired that much and  i mean it's not like the payments just went up in smoke they've they've not nearly so much in debt anymore that's correct but you know that also kind of circles back to my other argument is because they've made it all the way to almost the one yard line the finish line it's a hardship and it's and it's not equitable to not allow them to finish this case you know help but it be an abuse of discretion when the plan has to force them to pay the significant amount of debt off that even though they don't have the benefit of chapter thirteen anymore they have been required to pay off that significant amount so how could that amount to an abuse of discretion under as judge with said this highly deferential standard we think that goes to the fact that it makes it more reasonable that they paid so much into the case we're definitely not arguing that they were paying more than they were they had to but now in the arm to them from paying that amount into the case it benefits them it benefits him to the point that creditors got paid yes but we also believe that it's a harm because they were at the end of the case and they don't get the discharge which you know is one of the arguments that was cited in a lot of the cases i cited like the koala ski case and the all being case in the small way we think of this case was earlier on in the case that this would be a different a different argument but we think that it's it's a hardship to not allow a client who's at the end of the case to be able to pay off the case and get a discharge that you know one dollar rd of chapter thirteen cases get most that this is a unique case it's very unusual for a chapter thirteen debtor to come up with a six hundred dollars you know in the final you know leg of a bankruptcy and you know in conjunction with the financial setbacks they have we think that they meet the sixty six hurdle and you know the fact that this case was denied makes it on reasonable we also have my nd point where we think that there was an error of law committed as well too in the ruling which also can rise to an abuse of discretion as well to reverse the judge had stated that he couldn't rent this motion because he would have to grant all the future motions in which is might say he couldn't he i mean he acknowledged that when i read that was you're just saying look i grant you this commission be a long line of other people my actions do set a precedent i try to be consistent i mean i was hearing back in his remarks not somebody had found and gagged him and said you know once you've done this now thus it will never be i mean that was my reading of it is that we thought it might have influenced his decision because he thought he might have been down to ground future motions which i'm not saying it's just using that as a way to say this illustrates why this isn't an extraordinary circumstance because this would apply in almost every other bankruptcy that's at this stage i didn't read that i mean it didn't sound like that to me he just said if and if i grant this motion i'll have to contradict what i always do in the face of objections from the trustee of what has been called the other ones so i just read that as believing that he was influenced to grant this because out of fear you know setting a precedent which you know stare decisis would be a political to a case like this because it's not a conclusion of law so that was our take on that but you know that goes back to my argument it's a combination of all these factors the error of law amount of money they paid  and the injustice of not being able to get a discharge when they're that far into the case and then the other thing too is if this gets reinstated my clients are going to tender that eight thousand six hundred dollars to the trustee who's going to then send it to the unsecured creditors so it's a windfall for the creditors as well which fosters policies of equitable distribution for creditors which is a very important bank met their burden of proof to establish that the lower court abused its discretion in denying the rules sixty six motion it's not an opportunity to either related get the facts for generate disagreement with the lower court ruling that seven circuit has held that matters of relief under will sixty six dollars do lie within the sound discretion of the lower court and are reviewed extremely deferentially for clear air and that the lower court abused its discretion the th circuit has set a very high bar for relief under rule sixty six dollars stating that it is an exceptional relief reserved for extraordinary circumstances argument and made a plausible ruling in denying the rule sixty six motions and as roger stated any concern that the lower court may have had that it was iterated and dicta about setting a bad precedent is well founded so in applying the correct legal standard to the appellant's motion the lower court clearly stated in its tracks in the transcript i quote what you have here are circumstances that are not extraordinary in fact they're very ordinary as you know cases are dismissed all the time because debtors don't make their plan payments and they're frequently come they come back with motions of a kit and say well now we have the money there is nothing extraordinary about that fact that or appellants council does state i do agree with you but this is a high pay case so we have to look to why this was a high paying jason that comes down to the two thousand and five amendments to the bankruptcy act known as the bankruptcy abuse and prevention act which created a means t have to complete their monthly pan and that obligation is no different whether you're a high income doubter that has a higher plan payment or a low income individuals struggling to make one hundred dollars a month your plan obligations are the sa your obligations to perform under the terms of the and to completion are the same and just because an individual is high end come and may have a higher burden in terms of making the plan payments it doesn't warrant  a case to be treated differently or to be reviewed under a different standard by the courts if any got or falls into default in their plan payments in motion to dismiss was brought by the trustee if the default isn't cured in this absent relief under sixty six it's not about what he spends it they may have been incurred two and three years ago the question is will hardship result if the appellant's for tonight relieved under rule sixty six and the lower court stated absolutely correct that there is no hardship here there's no imminent harm to the appellants there's no eminent risk that there will be a foreclosure or homelessness the only stated in the lower court opinion having to pay your debts is not a hardship and as opponents of stated they have cash available should any creditors seek payment they also have income available so there is no harm in having to pay their creditors now not getting a discharge is an unfortunate result because they were in the case for a period of time but as a seven certain said county in unfortunate result is not a basis for relief under rule sixty six dollars account does also argue that it was a reasonable for the ruling it's not whether i think it's reasonable or whether the a pound thinks it's reasonable but whether or no other person would agree that it is reasonable and this sort of was previously affirmed by the district court so i think that defeats the argument to make night that no other reasonable person but if agree that this order was reasonable so let me ask you a quick question are there any arguments you're making right now that are different from the arguments you would have made if there had been appeal taken from the order of dismissal which there was not yes because an appeal to an argument appealed to dismissal would have been different because at the time of the case was dismissed there is absolutely no showing or no argument that somehow the dismissal wasn't appropriate at the time it happened appellants can see that they were in the fault at the time that kids was dismissed and there was no record created at the time of dismissal that there was any kind of hardship or any type of potential solution to the default unplanned payments so i'm remembering one fact that there was a statement there right here in the courtroom today they've got a check we're ready to give it to the trustee trustees of i don't want it so correct right they did offer further mr miller oh yes just a couple points st off we don't think it's relevant if the trustee had wrap this up because the case was still open and if the judge would have granted the motion they would have been forced to accept the fines and you know pay off the and just really for just relief because of the hardship and once again just to reiterate two large claims for twenty eight thousand dollars with interest did not get discharge and you know they could come after the clients you know so that in addition to not being able to get a discharge when you're this far you know into a case we believe isn't reasonable and you know we we are not arguing whatsoever that my clients were voluntarily paying back more than they had all we're simply saying is it's just a factor that goes toward the inequitable this of the decision that you know because they paid so much more they should you know get the benefit of it if there are no further questions i would ask this court to reverse thank you all right seeing none thank you very much thanks to both counsel we will take this case under advisement and the court will be in recess