which i believe changes a lot of the arguments that i might have otherwise made we have argued in our brief with regard to the issue of oath oath has been definitively taken out as a required element  and the supreme court decision seems to focus on several different issues rather than that most importantly the supreme court decision seems to focus on well first of if states will only that they finally found that the failure to disclose a personal injury action to the bankruptcy court was in another itself not sufficient grounds for judicial  benefit they laid out the five factors again and have a very dim a little bit from the five factors they were previously laid out in the series and and its ilk those five factors in determining judicial sokal are that two different positions have to have been taken but those positions have to be factually inconsistent that they have to be taken in separate judicial matters that the intent of the first proceed here we the fact that it is being question is whether two different positions and if there was no mention of the bankruptcy extent of the personal injury as an asset to the bankruptcy  r and the then obviously the assertion of that claim as a personal injury claim a claim county obviously if that's significant those are factually inconsistent you cannot have both asserted the  the bankruptcy court about the accrual of the cause of action for the personal injury claim even though that cause of action accrued after the inception of the bankruptcy court in fact  very clear that they have no right but i but i believe this in the seymour case there's no doubt they point blank held that that is a legal obligation and they went on to sort of parse it out a little bit after that obviously there were several judicial proceedings and then i believe that what they did in this in the seymour case was they assess whether or not the court had actually exercise discretion i believe in fact that they really found in seymour that the court had not even actually there was no actual ordered record taken of the oral arguments and we had some discussion that day about whether the recording system was working or not and it wasn't working i had the privilege of being the only one here in this room that was there that day and we laid everything out for the judge and i do i don't believe the judge exercised any discretion i believe that she ruled that the law was the law and that there were these two separate positions taken in there for the court found that there had to be a intent to deceive and intent to take game to court and clearly from the what is available to the court there was no pleadings before the a cruel of the cause of action for the personal injury claim after the cause of action for the the personal injury claim the only thing that was done was a  and since judicial asako would require that the two separate positions grant some sort of benefit to the point of all the point opponents motion was the night she continued to make the same payments that she was making before  and in fact completed all those payments and her bankruptcy would so i don't know kill the soul in seymour the supreme court scene they say where there is affirmative bankruptcy trustee an affidavit from the bankruptcy attorney an affidavit from the debtor do we have any of those three things in our case no we do not so we don't have any affirmative unc did not deliberately change positions no your honor but when granting summary judgment the facts need to be viewed in the light most favorable to the nonmoving party with the widespread support use that language it was relevant to that particular claim but i do think if we go through the supreme court decision that they also use a different time to the language that there was no evidence of an intent to deceive or game the court and again in the case of our there don't inform the bankruptcy or they'll by the way i have also found a personal injury action which may in fact accrue to the benefit of the bankrupt state you're saying i can't would strengthen the proposition that that inference could be drawn but i think there's more at stake here keep in mind that the petitioner and crew tens of thousands in fact over one hundred thousand dollars in medical bills allegedly as a we're still nowhere near going to a trial on the personal injury claim and so i guess is the court going to then order that every bankruptcy estate in which something like this arises has to be expanded beyond the typical five years and just it's going to remain open i don't believe that there were that this the a pool of this claim gave the plaintiff any it has debility to make payments during the five years to the which sets forth certain things that have to be disclosed and none of those would match up with a personal injury and now there are as the court of point out there are federal decisions from the bench seymour seemed to think that if the failure to disclose that was inadvertent if there was no if she did not actually know that she had to do that then that is not alone provide a basis for th and you know what i don't know the court even wants to entertain this i argued some some public policy issues first off if we if we find this conclusion then the defendant obtain a potential windfall by not being held responsible for their actions the debtors that are owed the medical bills related to this claim they may have no remedy then at that point in time  and that certainly there's no guarantee one way or the other in fact that's the whole the whole gist is this is a speculative recovery this is not a solid tangible asset it's a special of asset at best we may not prevail in that claim but  by totally taking this issue out by by dismissing the claim you also work contrary to the interests of those other part finds that the there must be evidence of an intent to deceive or an intent to gain this court and that nowhere in the record is that evidence exists for those reasons we would ask that you reverse the decision of the the relationship of the parties if this court were to reverse the circuit court decision on judicial stoffel it would not be preserving the integrity of the judicial system and in essence what it would really be doing would be to endorse or actually condone legal malpractise potentially committed by ms first bankruptcy it hasn't been discussed at length within the briefs but in looking at the record i'm feel within the response brief i submitted to or the intent to deceive is shown within the documents that were so she submitted her statements to financial affairs and then three months thereafter are her injury or right and i'm saying if her lawyer incorporates all that and she acted upon that statement and intentionally did not disclose her ass i think the value of her asset being that personal injury case to the bankruptcy court that was an intentional a claim now to claim before this third circuit court because to allow that would be contrary to preserving the integrity of the judicial system well i'm is there i believe there i guess for me there's a difference between i mentioned this to my attorney and my attorney says you know wrongly that i don't have to disclose this versus my attorney says no let's not tell him about that because we don't want him you know you have this that doesn't apply here either the motive being a failure to disclose that asset is not incorporated within the bankruptcy i state the creditors can't make a claim as to the asset and she resists receives a discharge the benefit about this charge  whether or not the factors of judicial stoppel have been met is reviewed genova then whether or not the circuit court was correct in applying judicial stoffel is reviewed for abuse of discretion here i think all of the factors are met just as they were in the scene here as to whether or not the circuit court actually cites its question properly is different in that we don't have a transfer we don't have a license i would submit yes but in looking at this record as i must as the appellate attorney i can't tell when i can go beyond the record and i asked the question isn't that sort of thing but on this record i can't tell and we can't go  think that's because they found that the circuit court said its decision was mandated rather than its actual size and its discretion but counsel you still never really answered my client story which was what are we to while i would suggest your honner that the advantage is shown through the documents that toys r us submitted to the circuit court specifically those bankruptcy documents that she wanted the bankruptcy court to accept as true over the period of five years the representations made that statement of financial affairs and she had five years to supplement and she didn't  turns out that she didn't because of bad advice from the bankruptcy attorney and while that's a legal malpractise that doesn't that's not a sufficient reason to remain in this case for further proceedings on a personal injury basis for th possible to receive the benefit that they didn't earn and that's why i started by saying the purpose of judicial stopovers for the preservation of the judicial integrity just the integrity of the judicial system there is  rather than a focus upon the relationship of the parties it's not that the back on the purpose of the doctrine is not assessing which party comes out of this better than the other it's were contrary position well under the circumstances of seymour i mean the supreme court on ten different occasions i think says in this case under these circumstances so it's it's pretty narrow in my reading at least as to  i don't think there's anything else looking through some of the