mr smith the counsel for mr elliott was advised that the mr elliott had died about a month ago and did you file anything we did we did not and part of the reason is because we usually wait to file things until we get a death certificate we've been waiting on deficit death certificate i'm not suggesting that mr elliott is walking around live out you know outside i have no reason to believe that he isn't but that's the first reason why we haven't filed anything the second is because both mr smith and i agree that the death of mr elliott does not affect the case in controversies before you today both in this oral argument and in the other matter for which you took oral argument off calendar and i can discuss that further but if you'd  if the debtor's discharges revoked but which is what we're urging the court to do but on remained as instructed bankruptcy court to enter a new judgment revoking the discharge than the debtors preposition creditors those who had claims prior to the filing in december of two thousand and eleven would still be able to go after the debtors post petition assets and income whereas if the discharge is not revoked those creditors cannot go after the post petition assets and income dismissing the revocation claim for lack of jurisdiction but rather because the bat decided that the bankruptcy court needed to do so in april two thousand and fifteen the bat made this decision for three reasons first  looked at the supreme court's case in contract and misinterpreted that case to say that if a time bar is contained within a statute it's jurisdictional whereas if a time bar is contained in a court made rules it's the rules of bankruptcy procedure it's not jurisdictional subsequent i'm not sure the contract actually said that subsequent supreme court cases as well as cases by this court confirm that that is not actually true that just because a time bars found within a statute does not mean that is jurisdiction that soon the back was wrong on this one where do we go from there the second argument the second reason that the bat and his decision was it relied on the anderson case which was the first circuit back case and when we look at the andersen police say they followed the first circuit back because they liked better than the other decisions they were made by courts but i had assumed the back was wrong on this where do you go from there if if the ninth circuit ba we go from there then the court should obviously overrule or abrogate or whatever the proper term would be then let the bass decision and remain on the case to the bankruptcy court to reinstate the original judgment revoking the debtors discharge consequent i ask a little bit i don't know a lot about bankruptcy i just tell you don't practice in the area very much so i want to put that on the table and when you both say you can can educate me but there's no time limit to go back and reopen right as correct ok and so when we look at this difference that's sort of the ultimate interest in finale the interest in being able to turn the page start over what not and that's that's how discharge strikes me certainly but but but i'm not so sure about that there's this one year time limit for seeking to revoke the discharge but no time limit at all in seeking to reopen you want to speak to that that's correct i'm not sure that the how does it really get another word so how does how does the just charge really guarantee finality i think your honor that a motion to reopen does not necessarily it may under equitable tolling principles under the right circumstances it may toll the one year statute under section seven twenty seven he but i think as a general rule it would not so i think that there is some finality there now the focus on the statutes of limitations versus statute of repose which we find in one sentence in the baptist decision but which i think was pretty important to the bat based upon the comments they made at oral argument which i happen to be attending even though i wasn't counsel for the trustee at the time is that they seem to view statutes of repose as being person jurisdictional that also is not supported by any of the cases that we've been able to locate certainly the supreme court cases have never said well this particularly statute is a statute of repose or a statute of limitation and therefore we find this one is  case a statute of repose is not jurisdictional right but if it is a statute of repose there is case law and this was discussed for example i believe in the dissent in wong that equitable tolling may not apply if it's a statute of repose instead of a statute a limitation if you can do it that way do you draw a distinction when forgive me for interrupting but it may be that we're using terms differently do you draw a distinction between a statute a limit limitation statute of limitations what we know is non jurisdictional unless congress is specifically indicated otherwise there's no indication that section seven twenty seven the e is intended to be jurisdictional absent we can look at the text of the statute we look at the nothing that indicates that section seven twenty seven see more than that right because the statute in fact in the eight hundred eighty said that the court shall it spoke to what the powers the court could or could not exert and it was amended now the statute talks about when the trustee may bring the motion to revoke right it's always said that the trustee may section some twenty seven of repose still a statue hungary's quite the contrary it's not speaking to the power of the court right the question of whether it speaks to the power of the court is a question of whether or not it's  distinction between a statute limitations on a mandatory statute of limitations i think that might be the difference and you recognize in the case that we've carved out it there's a separate category there but that i but i'm not trying to  trick questions i really was trying to get to the merits of that of after buttes of the provisions i'll get out of the way go ahead with your argument helping all right so so from from my perspective section seven twenty seven years the statute of limitations because i think it is triggered it is triggered by the harm the difference between the statute of limitations in a statute of repose is that the statute of limitation starts a certain time for filing a claim from the time of an injury or the time of the harm in the bankruptcy contest when that when the court enters an order discharging the debtor of since the statute of limitations and therefore we believe that the statue and efficiency cases kick in and the supreme court is clear i think that section seven twenty seven he is non jurisdictional ok the se it jurisdictional time bar that also is incorrect the statute of repose does not implicate a court's jurisdiction with a statute of reports can do is it case this is a forfeiture case the defendant failed to raise limitations as a defense and as a result under control in law it was waived it was never raised in the answer it was never raised in response to the motion for summary judgment and ask a different question that follows up on the question you got from judge wallace earlier if if we agree with your argument that the baptists erred on this jurisdictional versus nontraditional issue you know  normally if a lower court failed to reach the merits of something because it thought there was interest to action and we disagreed with that we would just reach out and decide the merits ourselves in the first instance normally we would send it back and say you lower court decide t you in response to judge ross's question said that you know we should just reinstate the bankruptcy court judgement which would in effect resolve the merits of the appeal that you all were thought you were going to battle out in before the backup before the  question on the other side i wanted to hear what you had to say as to why you think we should just not only reverse on the jurisdiction point but then also decide the merits of the i don't even know what the underlying merits are to tell you the truth in in anticipation of this concern in our opening brief we included this section where we discussed why it is that the court should ultimately affirm the summary judgment that was entered by the bankruptcy court the defendant actually  as alleged support it a summary judgment under section seven twenty seventy are sorry seven twenty seventy one the defendants only argument is that all the lies and all the all the misstatements made in the schedules and everything like that were the fault of her prior counsel and we provided you cases which show that that's not a good defense and of course the facts actually show that there was more than just statements made you know with the assistance of counsel there was actual perjury at eight under under penalty of perjury he falsely testified as three forty one a hearing and we raised that issue in our opening brief any opportunity now to contest that's correct that's a very long way of saying so but that's the answer statue the first place you look is to the statute it's not common law the whole right exists because of the statute and is limited by the statute so there is no common law that a court can revoke a bankruptcy but in state court there's time limits on in california state court for example on when you sell your house and you have a pot of money seventy five thousand that has a protection that doesn't come from the common law there's a statute in california that it's protected for six getting to the real issues we have before us and you don't disagree at the back was wrong when it said that if if the limitation is in any statute any statute at all that it's jurisdictional well they didn't say l not no not not they were very not because per se it's a statute that's the misconception here and they made a very big point just to say it's a this statute is this particular stand to cases so let's look at the attributes of where we do draw the line started souter made his dissent on why go to the left just most or not and a and then we look to see where it is in the statutory scheme as opposing counsel mention right and most statutes of repose are very long period of time this one is just one year there a list of cases there isn't one thread or faction seem to i thought well my right or wrong about this why don't get all the cases they cited and served sure enough not a one of them had the attribute of seven twenty seven he were the very a grant of power also had its limitation every single one had a separate statute somewhere generic statutes like the federal file a civil case in six years and then there was the me why mendelson am wrong are in opposition to your not in opposition to the position you're taking because they're not the same facts of the law here they each are in each we don't have to have a if we did that we did nothing i mean that up here the statutory scheme is that in those cases the limit isn't a separate statute but if the limit is in the very sentence and statute gives the court the power how are i mean may or may not remember them correctly but i am quite certain this pattern will and the court hasn't told me i'm wrong we'll vet the limitations in a separate sat it's not in the very satcher granting the power i would like to mention the power for either statutes which no one seems to argue about to appeal if you miss your time limit  appeal and they don't they're not labeled by congress as jurisdictional and you have mr time limit then the court has no more power than i would to tell joe smith out in the street to do something a power is gone and both the most recent expression of the supreme court is very strong on that this is where a district or told a person you've got a few you got seventy days to appeal he only had fourteen days of course judge souter thought how unfair the court gave you seventeen days and you appealed three days after the fact of the court's ok well the supreme court in the most recent of opinion on this in bowles says well we're sympathetic and this is terrible it's such a terrible we don't have the power we don't have the power because the power to hear appeals as ever your honour's know when you the first thing you put in your field proof is jurisdiction and you say we filed within time there's meaning if we didn't fall in time there's no jurisdiction so even and something so inequitable as a court tells you you have seventeen and you believe and you lose the supreme court in the most recent case and that's why i think the trustee knew they had to deal with it so they quoted it to send the case itself says if it's in the statute that grants the power it delineates the powers again i think the misconception is because the word time is there time can be a boundary on the power of a court to do something i don't with the trustee argue that your honor judge kristen mentioned the policy of fresh star and repose of course some times legal cases must end it sometime and we all know although they must someone jan when they're not exactly correct would you trust me are you we go twenty thirty years or one of the main features of the bankruptcy is the fresh start and you're not going to be bothered to get back to my first question on that point i know i'm interrupting for sure but but is it really a fresh start is it really finality that is served by this one year time limit because we know that the creditors can still reopen and there's no time limit for that there are completely different plans on that side so if you would you like to speak to it because i've been trying to get you both well having practiced in bankruptcy york for a long time and reopened literally hundreds of cases it's the defense could be waived right i think we all recognize that and so to that extent i'm looking to see whether or not that a discharge really does guarantee finale given that in bankruptcy recommences different thing but nevertheless the creditors have no limit on their ability to come back and reopen if they show fraud well i would like to answer that because in practice because what happens is the creditors may want the only reason they might want to reopen i revoke the discharge but they can't that finality is is special for the debtor it's to tell debtors you'll be finished you put this behind you you can't you don't have to order your life for twenty years with your creditors over your you know looking over your shoulder and i was saying your honor in practice what reopening is always almost i can't think of a case when it's almost it's always done for the creditors either to remove a lot of the whole lien you could have removed but you forgot to remove a judgment l or for an order show cause for contempt because somebody is disobeying the discharge injunction so all of their opening is actually servicing the idea of finality to keep these creditors away and if they start disobeying the discharge injunction then you a permanent injunction and it guarantees finality unless you've you've lied you cheated you haven't added assets and then even there there's going to be some finality because the trustee  will only have a year because it probably goes towards involuntary servitude because in other words if we have debts could never got be got rid of that's when you have bankruptcy for we don't have bankruptcy prison if that can never be got rid of we would have people ordering their lives hiding assets not being productive because there's something they'll get me from my creditors either i can't think of it not just that i don't want to think of it i can't think of anything other than revoking a discharge via how a creditor could come back and say bother the debtor it's only the debtor who can come back to enforce the discharge injunction order or remove a lien so even policy wise whether we label or satchel repose or not there has to be a time the whole bankruptcy scheme was somewhat absolutely disappear when some young lawyer asked me why why is a banker this is crazy w on the jurisdictional point rather than remand for the bow to consider the merits in the first instance we should just reinstate the bankruptcy court judgment and he argues that because you have in effect waived before our court and he had any right to  jurisdiction by making a mistake in our court can do things that congress never gave that power to do that's what the bowles said were a much more arguable type of equitable relief was that as i said th powers converting the your statute has this time limit in con power what would the time limit be would it be thirty years and again i as my opponent to mention over the norm and judge justice christian question is one would there be a reopening by a creditor to do anything but room vocal that's all the reopening would be done for by a predator thank you thank you straight to the question unite miscommunicate earlier but i'm trying to get to the won it i got to step to here and i and i have double checked and it says the trustee accredited or the united states may request revocation within one year so it doesn't speak to the power of the court that's absolutely true ok so there is finality it is possible that that provision the one year provision is subject to equitable tolling under the right circumstances that that is you know what it is counsel it depends on what it is it depends on ok and this is a forfeiture case not an equitable tolling case which is why we have improved the equitable tell i'm happy you got there now and now we know we're communicating right in so much so my point in discussing the the statute of they assume they were wrong just go if you just go with that then what happens then the court should reverse abrogate whatever the appropriate term would be the bad decision from able to does if these little weird because is if we decide the baptists wrong we go ahead with it in the bank court and then vapid understands it's wrong and in order for us to determine the bappa is right we have to be able to get around supreme court cases and one through cases that seem to look the other direction and say that they're more important than the first circuit correct and so what you should do what i would submit you should do is vacate the bankruptcy court judgment to the extent that it dismissed the seven twenty seven claim for lack of jurisdiction and due to the waiver of the argument here on appeal instruct remained with instructions to