b based on finding of abuse of process and additionally as in other of the court's discretion there are four points i'm going to make as to why this decision and my last point is going to be that and this is only something that the court needs to reach if it gets beyond all the other issues i mentioned and that is that after the supreme court decision in the low awesome has been implied the statutes if you are very clear and unequivocal and it provides no discretion it mandates a specific result so based on the statute we have to conclude that there is no discretion in the bankruptcy court to under the failure to file the tax returns again the court shall dismiss or convert depending on which ever is the best interest of creditors of the state so we've got a shall i may  two thousand and five amendment and congress obviously had the option of changing the language of thirteen a seven b but they did not it could have removed the at any time clause or that it would have somehow right how does that tell as to be always trumps right so well that's a good point a good question and here we follow the principles of actually construction that the supreme court has the he says what it says i mean we can't really argue about the language we can ask how it's been limited by subsequent amendments either but there is  quickly or think about while you're listening to the other argument if you research into seventy what it says is the debtor has an absolute right to dismiss a case under this chapter under chapter thirteen and i think if you look at the legislative history to the point is we cannot compel a debtor to stay in a chapter thirteen and be compelled to devote their future income to the creditors that's so so we cannot make someone stay in a chapter thirteen and my question is why is it inconsistent with that to say in certain circumstances involving bad faith however we have the option of dismissing they're no longer thirteen or converting them to a seven they're no longer in the chapter thirteen their future income is no longer devoted to the claims of their creditors we've taken them out of the chapter if you can answer it he can think about it that's well no i will separate statutes that congress has passed the one that happens earlier this action has to govern the law has nothing to do with this in my mind you're going have a hard time i mean you can give it a shot in your rebuttal if you want to convince me otherwise i think law is a whole other question abuse the bankruptcy process by moving to dismiss a bankruptcy after spending seventeen months without taking any actions to advance their case now none of the arguments made by the nichols even if they're correct amount to prejudicial error if these two findings are  so i actually think this is addressed by judge man's decision and ray brown in that case she notes that there are bankruptcy court decisions outside of the th circuit which hold that ross and was overruled d by law and in those the plain language of the code judge whether he was correct to assume that thirteen or seven predominates over thirteen or seven b where there is a conflict between two shall cause and so i don't think there's any issue with siegel here and in fact i think prior to the motion to dismiss or if you're if you're if we take out this sort of you know temporal component i mean he does say all requests to be done or at any time right so this is another issue that was addressed and brown if you look at my rama there's this discussion about procedural niceties d and in brown judgment done a fine is the procedural nicety as well as  finding to convert but there were hadn't been entered yet and that was the exact same case here and in fact you know the reason why we didn't have a conversion order prior to the just muscle is because the nichols asked for more time in order to comply with the requirements of the code in order to advance their case so again i think that to the extent that there was a procedural nicety that signal a city was created by the affirmative actions of the nichols so i think especially in that case we're getting into abuse of process under one of five territory  but i also want to really reiterate that this is not the appropriate case to examine the durability of process and the reason for that is that this argument was unquestionably d wavetable at oral the counsel for the nichols argument by stating the only exception or limitation on that right to dismiss is as stated in the ross again case which is if there is a finding of bad fix then he proceeds to go through the horribleness necessary for consideration about in the foot no where he purports in his reply to d have preserved this argument where he specifically states that debtors realize that the court is bound by this precedent point is that you should use a better vehicle for that than a case where it's been unquestionably waived d and bigger to court was invited to make that or i think under these facts this is not the appropriate case and additionally i think that this case i mean let me tease that i think that's an easy way to dispose of this case if this is the case if you choose to go that route let me get into the analysis of why siegel doesn't overrule d rossum right and i think he said so there are three dismiss or convert the best interest of the court shall dismiss the chapter thirteen and so in cases like this ross and attempts to figure out a time to lay out a path for how to deal with this d inconsistency and there are two ways that the court suggested that  a law would deal with this conflict the st is that when the finding of conversion occurs under thirteen thousand and seventy eight the debtor is no longer qualify as chapter thirteen debtors court has to dismiss or convert then the debtors technically have no right to proceed under one thousand three hundred and seven and again the nd aspect of this is that section one of five allows the bankruptcy court to act to prevent an abuse of the bankruptcy process using its equitable powers in the sequel case d as just judge lafferty i think correctly pointed out well he says that you cannot use one of five to exceed  no implication of law and again i think that if you read through  ruling is going to occur either dismissal or conversion the debtor can simply dismiss and especially in a case like this where there her was a litany of defects with the chapter thirteen case and occurred for seventeen months really no reason for debtors to move to dismiss until the last possible minute because they can do it orally at any point prior to a final order being so if we if the court threw out analysis it would effectively allow any chapter thirteen debtor to dismiss at any time even if there have been adverse rulings converting or dismissing the case part of that is long as they get their motion and read between the gavel when the judge rules on the final order gets entered and that can't possibly be within the spirit and purpose of the bankruptcy code the spirit purpose of the bankruptcy code is to provide and this is from aroma on his debtors an opportunity d for a discharge it doesn't allow as the court found here debtors to hide in chapter thirteen for seventeen months without taking any actions for the benefit of your state or for the benefit of creditors but that to stop you for a minute you know that the argument is even good that he would make i  years when you know what they're acting bankruptcy they're not ok we were very we connect appropriately but now we're target of creditors can come out and we're no longer protected by the automatic say and what's wrong with that and as an alternative to conversion so while a number of the out of th circuit cases suggest that the bankruptcy court has powers to issue sanctions and that concerti it can cure the harm the problem here is that yes there can be some sanctions and yes there exiting bankruptcy you go after them but you know we're currently still engaged in secret litigation against non debtor entities related to this case and that case is effectively been put on hold because of this bankruptcy and i don't want to get into too much of the nitty gritty d details but effectively d if they're allowed to dismiss their case which we were worried about at the outset of th litigation we want to for in this case seventeen months with no negative consequences and all we have to do is get the dollars a month or a confirm plan that we can amend the next day and that can't possibly be the purpose of the bankruptcy  by congress and was its pressley put into the code so then to go further to allow a debtor to file chapter thirteen bankruptcy stay in it for seventeen months take no steps to advance the case and then dismiss and then say that the bankruptcy court can fix that with sanctions sort of undermines the whole idea that the bankruptcy code is specifically designed for good faith debtors who want to advance a plan  discharge basically becomes a litigation tactic that can stay in the state groupers that shouldn't be what congress is intent was and it doesn't seem that that's what congress is intent was because if we look at one of five well ok so i understand your particular circumstance there would be negative but it can be had the court has to look at the wider creditor body correct not a single question are correct and again your honor the trustee chapter thirteen trustee in this there is no point in converting it to chapter thirteen that's not the case here that is the outcome is very different depending on whether or not this case gets dismissed or gets converted t