brief after the deadline and when i saw this happening i saw the first brief the man and the notices from the court come in and substitute brief come in and i i couldn't help but think well what if we were arguing here today about that excusable neglect can be heard to argue that you didn't know about a rule that no satisfactory explanation exists for failure to follow rules you didn't have to wait until the last day submit you to errors by counsel who file things with us and one of the reasons why we don't normally strike the substitute brief is because we tend to be probably fairly liberal about recognizing that our rules can be difficult to understand and therefore we allow substitute briefs to be filed but those are our rules that we're forcing and here the law gives the bankruptcy judge the discretion to decide whether or not she will enforce the rules in her court and our standard of review is abuse of discretion and the argument i hear you making as essentially as an overall argument that been sitting in her chair we would have done just the opposite and let's just take it on hypothetical that i agree with you that i wouldn't rule that way but do i still grant you the relief that you are requesting of discretion and i fully recognize we don't start with a blank slate here i mean the standard is abuse of discretion but an exercise of discretion may be freely overturned by this court and this court can and should take a second look if it's clear that that exercise of discretion was faced lying on a finding of fact that's not supported by the record or to my misapprehension of the law so we have both here affidavit from the lawyer explaining exactly how it was that he had made arrangements to get the proof of claim filed and i have to say in reading that declaration i understand her frustration it's pretty damn conclusory almost as if he really didn't have a very good explanation and rather than file a perjurious declaration he just made very general statements in the hope that that would be good enough because your honor he perhaps mr apprehensive and i think the bankruptcy court misapprehended what a lawyer is about excusable neglect and what pioneer full whether he was apprehended or not it's his obligation to fully and adequately explain his neglect and if i read the bankruptcy court's ruling what she said was i'm will careless it was utter negligence i was careless this sat on my desk and the day after the bar date happened i looked and i saw it on my desk and i said whoops better file that cl it's negligence now think that he didn't explain the negligence or prove in my hypothetical or prove that it wasn't negligence doesn't mean that relief can't be granted under pioneer perhaps and some showing that it's excusable i mean if you did if he did so for example i checked with linda cardoza before i sent it up there she said i'll take care of it and she it she didn't that would be one thing but he never checked with hers for as i can tell for he just blindly sent it to an office she wasn't there and then he never checked to see whether it had arrived or whether it had been filed until the the  so how is that excusable going to be excusable not just negligence i don't think that that's what i don't think that's what pioneer says pioneer says we can do free me from just negligen we can't give relief perhaps from flouting the rules we can't get relief perhaps gross negligence like in some of these cases the attorney a sole practitioner with no secretary goes on vacation for six weeks hated gross negligence of the time get back into what your strawman brought up a little earlier on that is the standard overview yet and i don't see how we can sit here and say that the discretion that was after sized by this bankruptcy judge was abused unless you can show  improper finding of fact that's not supported by the record in the trial court i'm not satisfied with that they just aren't there i don't understand what this explanation is and therefore i cannot here are i think that that that statement may hold within it the idea that under pioneer that the explanation for the delay which is one of the four factors exercise is some sort of gatekeeper function some sort of preeminent overriding gatekeeper function that says if you can't explain your negligence which is to say alter your motive for the delay all of those the other circuits the first in the eight the rule is this the four pioneer factors do not carry equal weight the excuse given for the late filing must have the greatest import vaguely stating that she was ill and over a period of weeks you're not going to have this case but the rule of law but how how would you like us to write this case what do you want us to say i think that what should be said is that the explanation for the delay and he focused on the explanation for the delay is an improper focus these cases are in fact wrong because what you'll get if the only thing that we last paragraph of the opinion says we reverse and remand because because what because the trial court abused its discretion in that i improperly applied the pioneer test because it gave paramount importance to only one factor the reason for the delay and they used that factor as a gatekeeper to deny applied legally and once it's convinced that this court made a finding of fact that isn't supported by the record can take a fresh look well now i do if if so i mean don't we send these things back we're in a public court and we say ok you got test wrong discretion this court must include in order to reverse it has a definite and firm conviction then no reasonable court could reach the result that the bankruptcy court reached here this court analyze the evidence to in great detail only time that this has happened in the all cotton case which is a district court opinion affirming event which court decision from the southern district of new york facts very similar to the facts here the only difference between our card and here was that the strike pretty much i will i certainly can't argue about the length of the lie though i will i will note for the record that the claim was only fall one day late there was actually more of the way in terms of actions from your mates i think that goes more towards if you're honest of any other questions on this particular point out actually just move on very briefly to the informal first claim argument let the court would prefer that i not address that it's your choice at this point i don't think much else needs to be said about  honest and fair deal i still don't understand what your client's explanation is the arrangements that were made to get this thing to the senate and the court house well we know it was trivial and you know i mean why if let's take mr winston's argument why couldn't they just put it in an overnight federal express package and have it delivered directly to the clerk of the bankruptcy court sent out on friday the twenty on an abuse of discretion standard and the fact finder says i haven't been given adequate facts to determine that there was a good reason for missing the deadline and before infer i think the bankruptcy court said that it was just negligence just negligence he was negligent i don't accept any of these explanations but if all we're going to talk about is who's there was no prejudice he acted in good faith there's no reason to take this half million dollar burden and place it take it from the shoulders of the debtor who elected to breach its contract under the bankruptcy laws and put it on the shoulder of this land lord and this attorney that's not fair it's not just and that's what pioneer tells us to consider and the idea that we have to inquire about who's paralegal is on vacation in order to reach that inquiry and that analysis is i don't think the law and i don't think that and i think this this panel has the opportunity as your honor asked me right before the break to say that it's not the law and to say that this isn't the gatekeeper this is one factor and if the analysis apparently on its face