morning morning may please the court my name is john carberry and i represent the appellant cynthia this is an appeal from a decision of the bankruptcy court confirmed by the district court disallowing ms like cod as proof of claim in the debtors chapter eleven case on the basis that it was filed late on that fact there's no question the claim was filed late after the bar date that was set specifically for her and i ask you a question i know this comes up it's a question i the objection to claim she recites that she did not look at those addresses and in the last paragraph notes that she was living not given a specific address but a different town in florida i will note that there was a typo in that well your honor there's no evidence in the record that there was any effort made to determine what her actual address was the apple these briefly sites that they rely on documents have been filed in earlier proceedings including serving her at the address of the property which was the subject of the underlying state court action which had been foreclosed on which they knew she did not live at so your honor there is no evidence on in the record of any effort that was made watch her actual address was if there was and they said we could not locate her then i would say that might be a different story but in this case they have three sided notices that were given to the various addresses she has stated and her husband has also stated that neither of them were living or doing business at any of the addresses that were used i don't want to have a more their lawyer received verbal notice in a court proceeding in november of two thousand and twelve that there was a bankruptcy case pending the certificate of service for the schedules which were deny that he received his proper address it was he did deny however that it was independently memorable so that he would it would stick in his mind that he got this i would think so i  noticed in the bankruptcy court but a lawyer supposed to pay attention to claims and their clients understood your honor but i would also note that following that the let me to take it back i know this is resigned in the papers i'm sure you're familiar with it the process of this case was such that the debtors did not list her as a creditor in any of their pleadings up until the point where they were called out by a state court judge in november of two thousand and twelve and that's the critical point that honour's are pointing to after that they went in and filed a motion to set a bar date from is like because they had the original bar date for the case had already passed connecticut has a little bit of an unusual procedure procedure where the claim bar date is set immediately on the filing of the case which differs from the southern district and others that date had passed long before she ever was included as a schedule creditor then when they went in schedule as a creditor they listed it as disputed and an liquidated and that was clearly false because they knew that her claim was the subject of a jury trial it had been affirmed by the connecticut appellate court connecticut and that the argument in the connecticut supremes court on that matter was conducted just twenty days before they filed for bankruptcy and yet they never included anything that had anything to do with her claim and supreme court that dismissed providen the connecticut supreme court dismissed the petition as improvidently granted after the bankruptcy case was filed was still pending before that it was still pending before that court but it had been the the  appeal to the supreme court had been dismissed prior to the time that they filed the amended schedules that included her claim and still said disputed and on liquidated now under rule three thousand to be three i believe it  is she would not if they had listed it correctly when they filed those amended schedules she would not have had to file a claim because you only have to file a claim if a your claim is not scheduled or big your claim is listed as contingent on liquidated or disputed and it was none of those things notwithstanding the fact that that's what they put in there under oath despite the fact that this was done months after the connecticut supreme court had left let the judgment stand so your hon a confusion like this something that a bankruptcy court has discretion to sort out and make right by saying well this is kind of a mess here's a new bar date and send notice and the no received or not disputed to be received by counsel and then nobody acts for two years no that's one way of looking at this you have to concede but the notice of the bar they were not sent to the council there was nothing that was clearly said he did not receive the notice of our date he's not listed as a recipient on the on the notice and the d addresses used for mrs a kata are incorrect i would note that bankruptcy in two thousand and two a case which believe it or not is still pending in the bankruptcy court in connecticut and among other things one of the moves was occasioned by the fact that sevenoaks foreclose on the home that is the underlying property here and the finances of the katas were somewhat strained throughout that entire period so would it be unusual for you right to move six times in that i would just note we're talking about pioneer investment services here for excusable neglect and i would just note that first of all obviously we have to get to the reason for the delay which we've been discussing which is one which is perhaps the most important measure but there are also others including danger of prejudice to the debtor the debtor confirmed a plan in this case a plan that actually in compas is mrs le cot his claim if it were to be allowed the case was held up for some period of time but not by the fact that mrs le cot his claim was still up in the air if her claim were to be allowed the plan and there was an appeal pending in the district court as to some of the terms of the plan how it treats person that would have any downside at all if her claim were to be allowed would be more reach odos the principle of sevenoaks partners who was the architect of all of these filings who swore on all of these that they were true which they were not and what would happen if the claim is allowed is her claim would either be paid out pro rata with his because his is subordinated to the class one  claims we don't believe there's a basis for that or if we were not subordinated her claim would be paid prior to his out of the proceeds out of a piece of property in greenwich connecticut i see my time is up your i reserve the minutes rebuttal i have you here you th burden proof here the standard of review is abuse of discretion and the appellant must prove excusable neglect into the stands and then announced by this court in a way enron is the leading authority on that and the appellant really doesn't address the factual findings made by the bankruptcy court and which were confirmed in the affirm and secured by the connecticut district court on this point your adversary our youth that there's no evidence that any of the addressees received the notice of the additional bar date including counsel the bar date notice was not served on attorney brown the amended schedules were served on attorney brown that was admitted that was found conclusively by both courts below and attorney brown a member of the bar submitted a false affidavit to the court that stated he was never served with anything that was conclusively established to be false by the submission  transcript from the state court proceeding in which it was openly discussed on the record that he had been served about the fact of the bankruptcy with the need to file a proof a claim judge evidence that they ever got notice of the additional binding he did i don't hear you claiming that as evidence that they got notice of the additional day initial bar date was mailed to every day you know i mean studiously avoided informing anyone where she did in fact live except a city of about seven hundred thousand people there's no street address there's no building there's no independent proof offered whatsoever to confirm where she lived a lease utility bradenton florida for a husband the next town but debtors council made every effort to find an address they could locate the track her down and serve her but we guard less your honor the notice to her counsel constitutes compliance with the governing standards judge ordered his decision to scuzz as a law on this point i have a further case law in my in my brief that the attorney involved with the client related to the subject matter in question and attorney brown was definitely involved as he represented her and obtained the judgment on the counter claim in her favor constitutes noted notice to the creditor it is imputed she's on notice and that really resolve the bulk of any of the other issues in the case of the other problem was that the pellet never filed a motion to even allow the late filed claim the whole order of proceedings got reversed  so the claim was filed over a year after her birth date in order to try to advance the case i filed an objection to a claim that should never have even been on the docket to begin with and the main problem there is your honor the issue of neglect which is the primary legal standard that the appellant must satisfy in this case was never brought to the attention of the bankruptcy court the first time excusable to collect was raised by the appellant was on appeal to the district court so since the appellant never asked the bankruptcy court and never submitted evidence to the bankruptcy court to address the excusable neglect standard it never will have on that standard it was never asked to what's the basis for representing to the bankruptcy court if there was such a representation that the that the claim is disputed and liquidated that the that the claim was it actually doesn't matter as long as the creditor has actual notice of the bankruptcy proceeding they're on notice they are required to investigate and respond not initially but but her lawyer was served with the amended schedules listing it as disputed and that is the linchpin of the case attorney brown i represented missal cut it admittedly he represented her on the transcript as found by both courts received the amended schedules listing her as a disputed creditor and that imposes a burden for the creditor to review the schedules look at them and decide if they need to file a claim in the bankruptcy court i don't know if they did it or not but they never a claim for thirteen or more months after the bar date passed furthermore your honor as the district court decision review this and clearly examine the argument  once notice has been established the determination of whether or not there was an improper scheduling of a claim actually becomes irrelevant notice we absolve the problem and the creditor now case will result in the debt being discharged irrespective of whether or not the debt was scheduled or not or whether it was scheduled improperly and beyond that your honor would rest on a brief honor as far as the issue concerning whether or not a motion to allow the late claim should have been filed this case this did come on in a rather unusual fashion but the claim was file page one hundred two of the joint appendix noted that that seems unwarranted although she did not use that as a basis for any further action but just note the cases do raise a burden do create a burden for having a late claim filed however the courts the enron case the supreme court in pioneer all know that the question of whether to allow a claim laid claim is an equitable one and the court must look at all the facts and circumstances surrounding the filing of the claim in the disallowance and i would note in this case that the overwhelming evidence here is that the debtor went out of its way over an extended period of time to  put burdens and obstacles in ms the cot as a way to defeat her claim which was without a doubt an liquidated undisputed and to this day ten years later remains unsatisfied thank you thank you thank you both reserve decision