case that situation while unusual is not unprecedented there have been other cases heard by appellate courts including this court where they've taken cases where there is no a to intervene and make rulings that don't involve other parties one of those cases was really op over says trustee and the united states trustee heard in this court in two thousand and three are heard in the back up affirmed by this court in that case involved a court ruling reducing the debtors attorney's fees but with respect counsel i read your cases had to pay around a one thousand dollars more unsecured creditors and they whatever the bankruptcy courts and the preferred chapter three plan and yet the the debtors in this case that secured creditors are zero s honor the the problem is they would have been zero there would have been no controversy if the debtors proposed plan like which had been approved the controversy here is that the court's required plan language mandated excess dividend payments to unsecured creditors not required by the bankruptcy code my client mr mercado in fact paid over a one thousand almost a one thousand dollars more through his payments a below median income debtor met the test the bankruptcy court player lays out about what must be paid to creditors in a bankruptcy he met all of those t proposed a plan to pay what was required and and he removed the provision of the court the court required saying he had to stay in the case for a minimum duration th minimum duration was not required by the court code and that caused him the damages that are involved for him and he's one debtor out of a last year in the th circuit there were over twenty seven thousand chapter thirteen debtors so you're saying if he had the estimated a plan he could have ended it earlier and said didn't wouldn't have to pay unsecured credit all he would have ended it when he paid those creditors specifically what he proposed to the laid out to all of the and that is what the court this court held on bank in the danielson v flora's case they went through a lengthy discussion about when there is a minimum duration created and the most telling point was they said it's only created when the trustee or a creditor exercises that discretion that they have to file an objection the objection itself creates for below median income loans those are the clients that i and i believe most of my colleagues see on an everyday basis they could involve a unique personal individual that the debtor owed money to notice not in for these appellants because the lower court delayed the confirmation they were required to get really notices frequently in the case and at the end of the up time the trial court decision came down maybe six months after these cases were filed we had no idea that there were going to create an implied mandatory minimum duration there was no reason to believe the procedures that we had filed the case language we use was was identical from what we had been used for the prior many decades or close to it so so prior to two thousand and sixteen you were allowed to use these estimated terms that that's yes and these in the judges that signed the trial court opinion i believe from this brief they signed over four thousand confirmation orders using this language so  division the center is a division play and differed from the oakland and san francisco division plans on this language that for the last three or four years and when the san jose division  judges discussed this they reference they wanted to become they did this because they wanted more uniformity they were concerned about judicial resources where judges from the other divisions might be stepping in and they wanted familiarity it wasn't because they aren't they never articulated to my knowledge that this was the law until the opinion came down so the practice is different in every district in california or in every  sent it out for review after they approved a rule where that model plan could be approved or each district at that point could adopt opt out of that and adopt its own model plan to my knowledge every model plan adopted in the state of california contains they have is the standard language with the kaavya that they must have for doubters who are given the exclusive right to propose a dispute i think another thing that started out in my question was is there are other districts in california that do allow estimated plans now if you know my knowledge is that all of the districts have the same required language that we're appealing i don't know that it's being appealed anywhere else after the reality is it's taken appellants four years to get here for consumer bankruptcy cases they simply on a pro bono basis these cases aren't going to show up very often and this is our i believe our opportunity not only for our appellants but to clarify that all of the doubters in this circuit have a right to propose a plan not inconsistent and they shouldn't be forced to accept language that's inconsistent with the code but i haven't found it with respect i mean i understand your concern i understand why you bankruptcy judge why i don't think the record we're asking the court of appeals to clarify that the debtors have a right to include this plan language you get and the damages that flow are though i look i understand what i'm concerned about is this i don't and i question their damages i'm just saying i don't see anybody opposing you so and you look at the cases that you've cited and i appreciate your sending those i think they're all distinguishable from your situation debtors payments included in one dollar payment that money could be offset to pay back that's been happened in the past where there's been overpaid it's also this court can order the lower court to correct the plans so there's a real remedy here and i think on the standing issue which i focus my time on most important this isn't a case where there was no other record before this court there were no discussion of the issues because the lower courts issued lengthy opinions of twenty three dollars thirty four cents pages respectively they detailed their legal reasoning in those opinions the reasoning that said issue here and they do provide this court with a thorough explication of the opposing position as if they were opposing parties so there are real legal issues before you there are no legal issues just no real parties well the debtors are the party of real pride there to meet the standing requirements when we responded to the court we looked for what's required nowhere does it say there has to be an a and there's that is consistent with pieces that have come to a public courts through the bankruptcy courts that's the situation work if they have no right here these clients will never have a chance to to to  party the absence of another party in our appeal that there are actually several code provisions in the bankruptcy code that permit bankruptcy judges to take action against the doubters bankruptcy court did in the situation are big did any of your clients have injury based off of their bankruptcy courts orders yes yes indeed what was the injury well and it's happening right now and that is as their plans are continuing they will wind up paying more to the general and secure claims than they would have if their original initial plans had been confirmed do you know how much just it depends largely on what the trustees fees are because the trustees fees vary from month to month and if the trustees fees goes go down the general and secured creditors will get more all the all the claims have been filed and final for several years already but the trustees fees are the things that would change and the injuries because if they change from is estimated planned to a fixed plan they could have ended it earlier exactly exactly right yeah so so anyway so there are other provisions in the bankruptcy code that could generate a bankruptcy court decision against the debtor where there would be no other party to that particular action and the court would be in its power to do that so the fact that the circuits haven't seen to many of these cases is understandable like mr schoeman mentioned it does it's not easy to get this far we had to go up the ladder requesting leave to appeal because we initially had a neutral i q torrie order in terms of the denial of the initial plan couldn't get here that way so we had go back down and get the bad plan confirmed so we could appeal that and now we're up here four years later not very many debtors attorneys are willing to to take that cost but we felt that this important issue it does affect thousands of cases per year and and we believe that it's actually very important ninety's my husband i've been practicing since seventy eight in the eighty's and ninety's estimated plans were quite common and as i put in the brief the reference to one of the elements of finding good faith being probable and expected duration of the plan was evidence of the fact that they were estimated terms because if they were required to be fixed terms the that particular standard would not have been expressed that way it would expressed been expressed in the way of what is the precise term of the plan rather than the probable or the expected or has he just the model the national model plan would have estimated duration i'm not entirely sure i do know that one aspect of your appeal which is kind of like the flip side of the coin there which is being able to specify a fixed dollar amount you are able to do that in the national plan and the reason i'm not that familiar with the national plan is because many districts a course across the country have opted out of that national national plan including the northern district so we don't we don't deal with it normally but i want to clarify also that the the federal the rule that allows the national plan  requires a national plan except if an opt out that wasn't in effect when we filed our case but the judges in our district were kind of acting as if it was already in  effect and i would like to really emphasize what mr sherman said about the opinions the banker court opinion and the bappa pinioned were very lengthy i think a total of more than fifty pages fifty published pages and they laid out in great detail what their argument was they never presented to us before they came down bankruptcy court never said anything about they did grant our motion for leave to appeal because we knew that the denial of confirmation was likely to be not a final order an interlocutory so they granted that and they heard it and unfortunately it didn't come out well for us the the real one important part really is to really hone in on the issue of good faith because the bankruptcy court does have to even just last summer in a chapter eleven case which also chapter eleven has precisely the same language requirement for the plans being filed in good faith exactly the same language and this court in the last summer and garvey cook made the same finding and holding consistent with everything prior to that that a finding of lack of good faith cannot be a matter of law it has to be made on a case by case basis it has to be a factual analysis of that case and the totality of circumstances in that case and that's exactly what the bankruptcy court did not do you know are cases safe they held that our debtors fail the good faith requirement by not putting their plan provision in which they said was the only thing that would avoid violating two sections of the bankruptcy code which did not even apply to well i think the baps suggests that it's it could be construed as manipulating the code to basically screw the unsecured creditors but that's actually i think that's a good good explanation of what they said and yet while a very important case by this court says you cannot be found to have bad faith for doing exactly what the code allows you to do so that's pretty clear but it that's a good way of i think describing their position you're saying that's not sufficiently a factual exactly it was precisely not a factual case by case because they said it would apply it was specific code language specific plan language they said had to be in every case ours were the cases they were speaking to but they said it had to be in every case  really a vast majority of them are debt buyers and they don't have any evidence of the actual original contract or anything else the rules have been changed in a way that allows them to just put in a  here so i'm james bore and i'm here on behalf of the chapter thirteen trustee for the san jose division of the court and i'd like to thank you for allowing me to participate norle argument today you know this case is really about the propriety of a very significant shift in the law in the san jose division with respect to estimated term plans the trustee use here today because the lower court ignored their legal shift and instead judicial finding to single out the trustee and some perceived dereliction in her duties as the blame for the use of estimated term plans until now the trustee hasn't had an opportunity to defend her practices the lower courts findings were entered without due process they are undeserved and they are without evidence for a support so let me be clear the trust the properly did her job in each of these cases as she does in all of the chapter thirteen cases that she had ministered she did a detailed analysis of the plans she performed all the tests of confirmation including the disposable income tests that protects unsecured creditors to make sure that they're given what they do under the code and based on her analysis found that you can get the impression that for some reason she had a duty to act in every single bankruptcy case she does not heard duty is to analyze the cases to appearing to be heard and to object appropriate it was not appropriate in these cases because at the time that she was these cases the law in the san jose deficient allo estimated term plants can be what does your client want us to do what are you asking of this court i'm asking the trustee would love to have the findings of the bankruptcy of the bankruptcy court and the actually denied but in the course of bed the judge said that the assistant u s attorney had engaged in an ethical conduct and it didn't mean that he was saying that case file a notice of appeal though i don't know for certain but they may have and they could have done that in sr the trust you could have done i don't know whether we could have because we were involved below but in any event these factual findings and the lack of evidentiary support have also been raised by the appellant in this case where we're simply adding a basis for would you agree that the findings against the trustee your client it's not really important to either of the holdings of the map i would agree that it was absolutely unnecessary to any they certainly could have reached their legal conclusions about the estimated term plans without saying a here so i just want to say that the trustee files objection she is always filed objections when they're appropriate she has never made any categorical decision to not file objections or to not file certain kinds of objections she didn't object in these cases because she believed the estimated term plans at that time under the law in the san jose division were permissible and were  compliant and so we believe that the findings in the decision below are undeserved and are without support in the