think right and certainly not twelve graders you're on the question presented by this case is whether the bankruptcy court properly exercised federal question jurisdiction  claim be discharged was not the party who held the claim and section five twenty three a is very specific on this point and it grants the right to request that a discharge that a claim be accepted in distress or only to the party who has the claims and this case the party that filed the action was a company a corporation called sun kennel communications we referred to an abuse of centennial and it was dissolved before the action was wild and it was not to represent represented representative of the bankruptcy estate and it was on that matter that the first appeal in this case went up on appeal to this court the ninth circuit and this court  we manned of the matter to the bankruptcy court to determine who had the capacity to sue there was no hearing there was no subsequent trial and remount declarations were submitted  question the question of jurisdiction disposes of the case there will and if there is no jurisdiction then the court has no choice but to dismiss the case and in the ninth circuit decision which is cited in the  versus the state of california there is an excellent recitation of the look of the arises under jurisdiction of disc federal question jurisdiction of this court and what that case stands for is the representative of the estate that was alluded to in the record at the time went up on a few of the first time was internal communications the dissolved corporation that was not the representative of these think the ninth circuit the first panel we mand saying that the the correct point of should be substituted into the case nunc rotund i think the first point to be made here is that regardless of what the ninth circuit panel ordered it did not put consider the question of jurisdiction and i think that the the decisions of this court and of the supreme court are clear that if your stiction did not exist then neither the district court nor the ninth circuit court has any jurisdiction to do anything other than dismissed and that is the point that's made in the morongo band of indians case which is if there is no credible question your second then the court has no authority and it can't do anything but this missed the case and that's what should have happened the second question that was raised by united states supreme court case about remain on it says that this court this panel has the right to interpret its own remain and decision and what that means and whether it included the issue of jurisdiction or didn't and i think if you read that decisions only two paragraphs one you'll see that there's no mention of jurisdiction and i think that's the problem here is that this case started with a point of who wasn't authorized to represent the estate and that's right the people that started this case were not the authorized representatives you state there was another gentleman named michael healy by the way is not mentioned anywhere in the original case in the original trial in the plaintiff in the trial brief he's not mentioned thousands and thousands of claims filed in this court it would be unfair to the president and it's also unfair to this court to be clogged with that kind of litigation so there's a good public policy reason for this rule and i think this court should find that there was a lack of stems from a nine hundred eighty one bankruptcy piled in nebraska which is still alive to this day i think the record fairly supports the conclusion that that bankruptcy would have been concluded in the mid to late eighty's but for the actions conning with the state's fines so here we are twenty four some odd years later still trying to finalize a judgment against mr vogel i and the twenty four years is largely attributable to him i'd like to turn first to the issue of subject matter jurisdiction in the prior ninth circuit appeal if i heard counsel's arguments correctly it sounded as though they were arguing that subject matter jurisdiction was never raised in the prior appeal i heard that correctly that's definitely not the case and your honour's will see in reading the briefs in the prior case it definitely was raised and i think implicit order by the ninth circuit court of appeals they determine that there was jurisdiction because if they did not they would have had to dismiss your client the hill is the third in a series of representatives acquitted by the mexico successor representative there's no question that russ b hill was appointed as to test a representative and he continues to this day when the case was before the prior panel of this court there was a duly appointed representative in place yes and that was mr b he was in fact appointed as representative before the case went to trial in the santa rosa bankruptcy adversary proceeding and if memory serves he was appointed before the adversary proceeding was filed in santa rosa court there was always a duly appointed represented and was was he a party in the prior proceeding before the  not he also was not a party in the nebraska adversary proceeding in a very depressed adversary proceeding against vogel i was also brought in the name of centennial not in the name of the representative and no objection was ever raised by vote why in that case and of course there's a lot of case law that says that type of issue lack of capacity is wage if it's not timely raised and then you add to the fact it wasn't raised in the prior case and as the subject matter jurisdiction obviously what's happening here and what was raised primarily in the prior appeal was lack of capacity or that the real party in interest wasn't named as plaintiff that issue wasn't directly raised in the briefs in  is an issue that can be raised number one number two is an issue that can be cured by a number proton amendment as has occurred here and in fact that the history behind that rule encourages amendments to be done retroactive of the state was not of the then a fide party in the caption do i have that right that's my understanding and the purpose of the remembers to correct that exactly and that's what the bankruptcy court precisely identify the representative as the plaintiff as opposed to the estate that's the only issue and i think it just defies common sense to say you could not retroactively amend that the complaint to conform to that and that because it's done after the fact there was no subject matter of your stiction that the nature of the claim discharge ability in bankruptcy clearly that's the type of plane bankruptcy bankruptcy courts have jurisdiction over  and also when you add to that the fact that it's clear the representative had authority is a very minute technical issue which i think the ninth circuit previously dress i'd also like to address the due process argument  i think and we've kind of touched on it that the prior ninth circuit order essentially created a situation for the bankruptcy court in santa rosa that they had a ministerial act to carry out the terms of the remain and order the the remaining order doesn't as i read it doesn't give any discretion to the santa rosa court and it says even use of the term shall be done retroactively or excuse me no protonic if necessary shall obviously being mandatory i think it's also important to to acknowledge that the due process issue raised by both why to me is a very transparent one consistent with his desires to scald dodge and otherwise avoid his judgment that he has there's no factual issue that can be addressed on this on this i don't think in any respect is he dispute that the hill is the duly appointed representative it's nowhere in his brief that he disputes that he could have that if there truly were some factual issue he could have filed a motion to set aside the judgment in the center roosevelt rips the court saying that it was surprised to him under federal rules of procedure sixty he didn't do that he's never made an offer of proof that there's some type of factual issue there it is in my mind a complete red herring if he's given an opportunity to present evidence he has no evidence to present and common sense of what could the issue beat the issue was to find out who who was a representative appointed by the court is vocal like contending that the documents offered from the nebraska bankruptcy court somehow aren't authentic i don't know what the issue could possibly be and i think also on the due process issue the fact that the judgment initially was against the wife for nine hundred some odd thousand dollars both in th and in california the fact that it is amended no proton to change a defect in the name of the plaintiff doesn't implicate any property or liberty interest he's already been deprived of that by the previous judgments so the fact that the the plaintiffs name is changed in the complaint and the judgment in no way is any better or worse for voter y therefore i don't think there is a fairly red isn't close to this case and in fact none of the cases cited by appellate or close to this case wrong it was an inner pleader action and the issue there was whether the court in determining if there was a federal question jurisdiction could look at possible defenses to be raised by the defendant which could create federal questions whether the court could consider that in deciding if there's jurisdiction the court said no that has nothing to do with this case the other t wo cases cited by appellant franchise tax board which was construction laborers again it was a very narrow issue where it was an attempt to remove the case from state court federal court by a labor union  the court looked at there's a provision in a recess that allowed very specific identified individuals to file suit in federal court the labor union was one of the courts and therefore there's no jurisdiction again it's not close to this case the la he tried to file suit in federal court saying that it was intitled to bring suit within a six month period that the statute very expressed and said was granted only to the united states and the court said you can't do that statute very specifically says only the united states can file suit within the first six months you supply or cannot therefore there's no jurisdiction none of those cases involve a retroactive or no protonic amendment of the name of the plaintiff involving lack of capacity real party in interest or anything similar to it simply has no authority out there that says there is no subject matter jurisdiction when that occurs in terms of the statute of limitations issue which is raised in the briefs hasn't really been raised today i think that's a very simple issue if the amendment is meant protons by definition there's no statute of limitations issue so again i'd be happy to address any questions the court may have i don't the case has to be dismissed on the issue of due process what would have happened in the lower court if we had been given an opportunity to cross examine the witness well first of all we would one i didn't hear counsel say that but on whatever the record is it is so the but the point that really needs to be highlighted here is that the declarations that were submitted in the court were hearsay statements in the trial were to exclude witnesses and i specifically asked the trial judge to exclude as i said to the trial judge and it's in the record you can see it it says who is the representative of the state and the trial counsel of the reorganized debtor and the reorganized that it was never represented the estate it became a dissolved cooperation rather mr seely according to mr havel was represent of the estate and he was never mentioned he's not mentioned in the complaint he's not in the trial admitted by the bankruptcy court when it was submitted and that's why there's a few process issues but we don't get to the depressed issue because it's very clear from the record that there was a lack of subject manager stiction and that that lack of jurisdiction can't be cons by any of the parties and it can't be waved ok thank you for your argument think both sides for their argument the case just argued will be submitted more proceed to the next case on the calendar when it is about the bankruptcy case involving