ok ten minutes will tell you when the five minutes is gone by that you're on i want to point out that in the appellate he's brief they did not address in any way the fact that they failed to oppose the motion to reopen or the fact that up proper allegation of the statute of limitations under federal rule back reese bankruptcy procedure for seven was never listed in their answer and i personally believe on behalf of my clients that may be the end of it because it is unequivocal based upon th circuit law that failure to plead an affirmative defense and the answer is conclusive in pursuit of the authorities that i have cited but i'm starting with your st point about the motion to reopen your motion itself said that reopening a case has no substantive significance right that is correct and that's where some of the judges in the central district actually are in conflict there is even one case that the name of thought my head says that reopening isn't even necessary but i did it out of an abundance of caution and frankly in this case i think joe's russell disagrees with that case that says that reopening is not necessary he won the war how do you get to it's determinative i mean the fact that they didn't is it is it determinative now why does it matter as i was going to say because it would have been an opportunity for them to raise the issue that they chose not that in which you're saying that precludes them from doing it no that's not what i'm saying ok so when you say i'm saying that was the  st opportunity they had to raise the issue and they didn't so it's not significant i'm not saying it's an significant i'm saying it's not determinative the nd opportunity they had was after the adversary busy was filed by federal law they're required to list their affirmative defense well right that's where i disagree because i think it could have if that was their opportunity now i'm taking too much your time here on this one so i think here's the problem in this court is as opined that opening a case is in an ministerial act well in most courts it's not does not come in front of the judge it's just done by the clerk's office occasionally in some courts and i guess the central district is one of those courts the judges want to look at cases before they're reopening and  we have on occasion suggested that that's not perhaps the most appropriate place procedure because it leads to this let's determine whether it should be opened or not opened based upon the merits of the reason for opening it and we've we've read an opinion saying that's not the appropriate time to do that that the case should be opened and if there is some problem with the reopening of the case based upon the merits of the reason address that separately and that's that's i think the point we're trying to make very good then the next issue then is in answer to the atmospheric complaint the allegation of affirmative defense for statue of limitations should have been raised and was not and that's what i would get a court overlook that effectively waive the failure to get back to those on rebuttal this need be and get to the briefing or those are a list of that's why i listed them and that's why in the lower court we said that getting to the next point that is in fact this motion could be considered at all under twelve b it had to be before the answer was filed it was not the answer was filed without an affirmative defense for the statute of limitations that being a waiver then the motion to dismiss i have to be honest to the court i'm not aware of any law that allows you to do some generic motion to dismiss after you fall the answer the remedy is either some procedural motion for failure to comply with discovery things of that nature or a motion for summary judgment was in requires review and getting to the procedural point though the authorities i cited clearly state that if it's not listed in the answer it cannot be raised again on a motion for summary judgment it would seem to me that would have to apply to a generic motion to dismiss don't understand the court's question i don't have procedural questions what i've said in our brief is what i think is the law the judgment was recorded and it's good for ten years under state law and then under bankruptcy law as long as it still right when the bankruptcy is filed it can be raised in the bankruptcy and in this case even under the appeal these brief it's clear timing wise the the judgment in state court was still right at the time the back prosy was filed but what about when the bankruptcy case is closed and the automatic stay terminates well again we're back to the issue then of if we were required to do something we follow the motion reopen it was two thousand and fifteen within the ten year statute under state law and so it's my view that that protected us in the bankruptcy where we have gone because clearly and i'm just going to cut to the chase in this regard without nondestructive building in bankruptcy this debt is discharged there's no question about that so the survival of the dead in is the ultimate soldier's diction to determine the charge ability is in the bankruptcy court but the fact the fact that there wasn't an automatic stay anymore is not relevant to you know the quote because there wasn't right got but it's not relevant because it's the automatic stay that would have prevented you ordinarily from doing something to reprotect that judgment right that is correct but so there was an automatic sec well there was an automatic say until the discharge was entered the date i believe was sometime in two thousand and fourteen ok so i did but after that you could have done something but instead of that because the ten years would have been two thousand seven hundred we filed in two thousand and sixteen in the bankruptcy the motion to reopen but the  point i'm trying to make is when you did that there was no stay right there was no prohibition on you doing whatever you do in state law or i disagree or are because once we had knowledge of the bankruptcy under the beat is there an automatic stay no at the end of the bankruptcy there's the permanent injunction and under the beazley case you know listed or not what you have actual knowledge now you're subject to that and you cannot take out of this in your view that's the same effect as an automatic say with respect to perfecting a judgement i lost track of all the questions of how much i have left about six minutes left all right well then i better to say would also want to say so the bottom line is there is no procedure i'm aware of after the answer is filed under a generic motion to dismiss certainly when the failure to list the statute of limitations under bankruptcy law hasn't been planned so i think that is the focal point and upon that i think the court and i'll reserve the rest  them but if you look at the motion and judge russell telling council grant just saying well i didn't get it i didn't get it i didn't receive it isn't enough and that he should concentrate on was service that was wrong so council skips that and gets further on but the address that you sent the the service to by certified mail was a six year old address right was any effort made to make sure that that address that there was no evidence that the you know exactly how he put it but no evidence that the address was wrong that's basically what he was saying and there was no evidence filed in connection with the motion to dismiss by the responding party but there was a declaration attached to the complaint in which the principal of the bail bonds company said that was my address when the bankruptcy was filed i never received it i found out about it years later what are we to make of that we know the evidence was not brought to the attention of the judge when the motion was filed but it was sitting there in the file well judge rowsell i'm usually on the other side of this  arguing about technical default spite one is that i'm not sure in a complaint it's evidence i don't know it's a sworn statement or verified complaint but when we said it was a correct address and they had no orders then they had to file something saying it was not but they didn't do it and then they follow late and as i say i'm usually arguing that well he was right maybe he was too strict with the rules and too strictly right but he was correct and well again the there was they forgot to i've cited evidence that said if the lawyer that at all it's just i didn't get it that's a whole ballgame and we should redo this so i don't also on the statute of limits it's they were in ten years and didn't renew it so judgements in might be worse for them than just the statute limits that there was a judgement it's gone as expired and the rules in state court are not just  couched in the terms of statue limits it says that's it you can't prosecute it anymore so there's probably a state court bar apart from a statute limits these long i know your honors or ask me questions that seem to we're getting subsequent motion the cases cited motion for summary judgment number two because the answer didn't list this affirmative defense no discovery was necessary in fact the record is clear no discovery was done by either party because without an affirmative defense that is relevant to the issue and the one that was played with all due respect was completely in a political then we needed to know discovery we had adjustment i would also point out that the little more you ask you that question because might imagine troubling to the panel that that we're talking about the collection of a judgment that on its face was barred by the statute of limitations well placed on an interrupt me i'll interrupt you you don't get to interrupt me the time when it starts to run again right no i disagree or because in the permanent state goes into effect of which we ended up getting actual knowledge of which is why we filed our motion in the bankruptcy in two thousand and fifteen before the ten  take a rare opportunity to tell me something that i literally can't tell from the record when when you view the judgment expire i don't believe it expired at all and when would it have when would it have without the back to see what if it's fire two hundred and seventy two thousand but any of that because we filed the motion to reopen in the bankruptcy in two thousand and fifteen and it was granted to reopen because we were not properly served then it would be highly that equitable then for my client to be stuck with a statute that otherwise is part of the bankruptcy process not the state court process which is why we get to the point that i admit that but for now on this charge ability  knowledge in two thousand and fifteen we couldn't go back to state for you know one thing that puzzles me about the record is why the motion to reopen was filed and nothing happened for two years they were court didn't act on the motion reopen for almost actually over two years we remember correctly yes that is correct the order was it entered and i had to i don't think this is part of the record but i'll just tell the court stacey judge russell's clerk that i had several discussions where he asked me to read notice it and submit an order and i was waiting for that or the court may know i actually filed the adversary complaint before the order reopening was entered because i waited to get the entered order and it wasn't entered so i actually filed it beforehand at which point they said no he did rule on it and yes it was reopened in the whole discussion about whether or not i even needed to do that at all but just russell takes the position you must do it so i followed his direction and consequence under our brief it wasn't raised and more importantly not being raised there was nothing else for us to do than to go forward and prove our case there was no discovery necessary on that how did they raised we have gotten into all the arguments about as a public bill of bondsmen he had moved and it was public record where he was and they should have known the address and i would add that it's the debtor's duty to make sure not necessarily for discharge ability because beazley says listed or not if it's a to state court because under beazley we were discharged but for any of judgment we can get in bankruptcy for not just chargeable any more questions for the panel you aren't thank your own thank you