least i wouldn't be although i've seen that actually i'll try to avoid it so you've got fifteen minutes so we'll pick one of those microphones and talk and do it very well thank you on this appeal arises from an order which did two things st of all den then consequently dismissing the case st of all please bear in mind that there was no motion to dismiss this case no wishing to give rick the case the debtor was in full compliance of all of his us trustee duties and we are proceeding with a chapter eleven case the court dismissed the case having made four determinations there were four matters which we believe the court made an error on st this was a case of a chapter eleven debtor who is the husband of the wife who had previously been a chapter seven debtor had dollars restitution water answered against him in state court prior to the filing and in the wife's chapter seven case previously the wife which we also represented found the motion we avoided on as a lien on the family home precludes of the issue of how much of that lee and or how much of that claim was a security claim for purposes of the chapter eleven plan the bankruptcy court decided that there was no precludes of effect of the order in the wife's case even though it was the same lien it was the same property it was the same exemption the only discernible difference between the wife's case and the husband's case was that there were found in months apart the wife's case was filed and then eight months later the husband's case was filed and during that time we agree the value of the property may have changed somewhat but whether the give us a chance to file and our own motion to avoid the lien in this case the court said we can changed over that eight months that change could be easily addressed by allowing the debtor to supply an appraisal with a value so my thought in looking at this case in total i'm looking at that is what's the even effect conceded that you don't have a claim for question for want of a better term he might have issue preclusion and i don't think anybody is really talking about the other issues isn't its dispute exclusively about value so having to consider that  know i just i just don't i don't think that's an issue because they think you said we'd be willing to have it revalued and i don't think the judge said you can't she just said i'm not going to something's got to happen additional i believe you're correct with the court said was that we couldn't was that the order in the webspace was not yet out of pacific in this case right but as a consequence of dismissing the case as a result of the other errors i get into we lost the opportunity to file our own motion in this case we believe that the wife's order was because if the court the court came to a different conclusion we offered a suggestion as to how that could be resolved with a new motion which would be identical absolutely identical except for the current value of the property something eight months later not a huge amount was what when is when is when would you measure the value for chapter eleven well i believe it would be as a bit of filing for the motion to avoid i believe so i believe so and if not it could be as of the value would have changed long the longer it went on but that value certainly would not have gone up by four million dollars and he might have gone up by one hundred thousand dollars or something some relatively small amount in comparison struggling with what to do with this piece of it if we were to decide that the dismissal was just fine are you saying that there's air in failing to afford you an opportunity to strip off the the failure was to the failure was to provide due process in connection with that very dismissal there was no it's the weakest missal there was no motion to dismiss a convert pending the court did this because it perceived i think what the board did here is it sort of cut to the chase what the court did here was say this case has so many problems i'm just going to dismiss it whether they give us a chance to actually address those problems one by one by one the other major issue in this case is that the court determined that the restitution order case in the kelly vs robinson case the circumstances were very very different that order was entered under a connecticut statute which required that restitution be an affordable condition of probation the restitution and that case was one hundred dollars a month when the de violated it the court found that it was not destroyed you will hear the restitution there was no requirement that be affordable on its face it's not affordable it's for half a one million dollars and most importantly it was not a condition of any probation  daughter's mr mr o'hara's conditions of probation had terminated by the time that we were before the court there was simply no basis for this order to be determined to be nondestructive i'm furthermore five point three seven on its face does not apply to this kind of restitution order five hundred and twenty three a seven says that debt is not just chargeable if it's for a fine penalty or forfeiture this was not a fine this was on a penalty this was i for future forfeiture is a whole different creature of the law and in fact i cited in the supplemental authorities which i filed about a week ago a case from the appellate division of the superior court which has a very pithy quote in it it says restitution orders how there's an economic goal economic compensation for the victim or victims of a defendant's crime it is not a fight is not a penalty is not a forfeiture which is used for recovering property from basically organized crime it was also not payable to a governmental unit nor for the benefit of governmental unit it was simply a for a a a restitution to the to the victim in this case there's broad language in that decision do you think the knight circuit in in the recent case who's is it sheer functional armstrong where they've looked at they looked at the issue of whether california sta e california statute and whether our attorney disciplinary proceedings would be under kelly does that do we have enough of a pov to deviate from the supreme the blog language that all with that solution orders are not the struggle simply had no there was no reason for the court to go anywhere near that far under the terms under the under the facts of the kelly case one hundred dollars a month was designed to be efficient order which is modeled after the connecticut statutory order and the kelly case the affordable order if the debtor breaches that you know that's not just george will but to go to say we're going to treat all restitution orders as if they were called armstrong in which the th circuit said that the separate restitution order of the california penal system is opposed as a function of the administration of that state state's criminal justice system it therefore restitution which are premised some in some part on the condition of a probation or parole and or affordable designed to be affordable here there was no this is not a condition of parole that's not a condition of probation and it was there was no thought of afford though that there seems to be kelly talking about let's not interfere in the criminal justice system of the states then we have armstrong saying let's not you know if you know all of these decisions by able jurist i think and share that they do saying they were vestiges of the eighty's the idea that we were looking for a result or not looking at the language but we're sort of stuck with that isn't the best that we can do to say we get what with regard to the discharge ability of restitution orders really needs to be more fact based in my opinion because if you have one hundred dollars a month and that there's sanity affordable than sure it's not historical but if you have this whopping four million dollars judgment choose me the restitution order was not just chargeable which we believed was erroneous but as a consequence of that the court said with the language in the plan which is a form plan that we're mandated to use the puts an injunction on  basis it could but the mandatory injunction here the court thought was improper and the injunction was not something we specifically asked for the injunction was in the preprinted form which the court propounds and which many judges including the bankruptcy court here require debtors to use a court that kind of put you in the position of using that form here providing that this is a no that for which there is no meaningful provision for payment except that's the secured portion and then you've got this injunction that would prevent it from being collectible even though it's not on does it actually is  well was it was banned it had to be a component of this plan because the court requires that we use the form in the form provides for this broad injunction against collection of not destroyed people that's during the course of the plan the i did chase did not give us a chance to propose a more limited custom injunction that might have meant the court's requirements on the little bit in the dark as to what a meaningful payment is on a four dollars and a half one million dollars debt so i mean one hundred thousand dollars is a lot of money to you and me but isn't it is it meaningful on one dollar half one million dollars debt i don't know what meaningful means but we didn't have the opportunity even try to find out by proposing a different kind of a plan we were stuck with this mad the three injunction and that was the