the issue of ability to pay which is to some extent central to this with feel he deals with the mortgage issues that you have in this case he deals with the question of chapter thirteen and it's hard to distinguish kelly from this case except to say well kelly it was worst because kozinski goes in my opinion and we have argued that the court should consider perhaps reconsidering that kelly but  there was a mortgage a home mortgage could not be considered as part of the question of whether or not there were substantial abuse he does say that that ability to pay standing alone can kelly was that was a scoundrel here we have a man a debtor mr price to businesses that his wife had breast businesses fail his own business failed he suffered a divorce before filing these are fact these are facts which i think seven relief to mortgage holders marilee because they had well i've got to be careful he play and the actual and the actual wording of the substantial abused language which is the granting of the relief substantial abuse there are only three things that are done in any bankruptcy that and one is to protect the creditors from the debtor another is to protect the creditors from each other and the third is to discharge in many systems and so granting of relief must mean this charge and if we're talking about discharge in the substantial subject of just dismissal to substantial abuse they looked behind the words of the statute to the legislative history and found that congress was concerned with the discharge by consumer debtors  person had no kind of calamity in their life and other such practices can certainly be considered but what kelly held specifically was that you know congress was concerned with a triggered by this calculation but it isn't doesn't have to be that calculation i'm sorry but i mean doesn't have to be a little more than that simple calculation well we think kelly was rightly decided in saying that i their debts then they should i think i think that's a fairly simple proposition i think it recognizes the balance in the bankruptcy code of giving allowing a debtor a fresh start and on the one hand and making  he'll be able to keep his home as to be able to pay off all his creditors within three years and in our mind that is a just result and that in time that gives him the fresh start of those other circuit tests i guess what i wonder about here kelly described it as the primary factor and and you stated that there are other things that can push somebody over the line toward substantial abuse such as bad faith is there anything that can push somebody backwards somebody who has the ability to pay but are there circumstances that someone could offer up where the bankruptcy court would be in a position to say under these circumstances i determine it would not be a substantial abuse even though the person does have the ability to pay and even though a majority of the debt is consumer is there a place for someone to make that argument we would argue no because  they get to keep the whole if they happen to have a home i think they get their fresh start within three years and given congress preference to that debtors pay their debts we would say no to me that really over rates kelly kelly said in reviewing what a bankruptcy court did that finding alone might support what the bankruptcy court reached and of course the bankruptcy court reached this conclusion well obviously the court is free to reconsider or consider kelly along whatever lines it chooses was i was really arguing i just basically how can you point to kelly the language so i'm not going to apply seventy or seventy i guess i would point to page nine fourteen of the killer decision and say that they're focused on the overwhelming majority of courts considering the issue  step forth in his i set forth in the schedule he'll be able to keep his home he's admitted that in three years he could pay everybody one hundred percent and there is substantial consumer debt here i mean this almost