morning i'd like to reserve five minutes or bottle please that's the clock may please the court sean o'keefe or the appellant's i'd like to emphasize certain points in brief i think the critical point i'd like to emphasize up front is the policy issue here hundreds of thousands of contracts are rejected every single year the conclusiveness of that rejection allows the counter party to mitigate that is critical to the system the body of law that is now before you comes from a single case out of florida in rate kyra which presents a circumstance that breaks that conclusiveness that allows it to be a state to go back to thirty five years in the future infinite period of time into reinserted self into a contract we would need a new form of insurance to deal with contracts with debtors that are rejected to deal with that problem if this case is affirmed the nd point is this court has already rejected this theory  can you just clarify that for me absolutely emission products the issue is three hundred and sixty five g in particular in that case the court not only said it's a breach immediately before the petition date but i am terminating the license that's what the supreme court had a problem with the three hundred and sixty five g issue is is a very simple section that says when you  contract post petition your claim is deemed immediately prior to the petition date what the court was a breach of contract but the contract itself did not disappear or it wasn't race but the contract or more specifically the rights and burdens which would otherwise be the state could step into are not property of the estate post rejection or pre rejection because the a state has to step into that contract since it's not a party to it has the petition date and through the act of assumption it becomes a party in then assumes those rights and burdens the point of this court's past contract since the only way it can get into that contract is by assuming it and that's the nature of a contract with a voluntary relationship so what the supreme court and not understanding the estate is a party to the contract breach contract that's part of the estate your own admission brought it well actually mission products didn't deal with that particular issue the relationship of the estate to the contract it dealt with the effect of rejection those are two separate issues the estate being a separate legal entity it would be as if i threw my brief into the well the active assumption is me walking around in picking it up until i do it is outside the jurisprudence that is also the recent case of matter provided by the th circuit that's a function be very strict on this is this is the difficulty regs be very circular but that there was an extension the trustee didn't act dispute that that would not have been a missile they were not even from a source so we're talking about this really narrow issue it seems to me that because the district bankruptcy court had extended that time period and there may have been jurisdiction to sort of retroactive cited in their particular case the court noted that under rule four thousand and seven dollars includes the same language within the period of time in that case the time period was extended for the sixty day period in the permits the act to be done where the failure to act was the result of excusable dunkel act so given that the court cow wow the act to be done and after the expiration of th why does it land necessarily contemplate the at the extension can be and that same language it says within the period so if for example it is made after the expiration of the specified period if you honor it contemplates that during that period it gets extended so let's assume it's extended per period for at the activity where the failure to act was the result of excusable but then if there's another piece of it there as i recall which deals with the motion in this court but the one says if the request therefore is made before the expiration of the period of originally prescribed or as extended by previous border so this extended multiple times so the last deadline was february twenty two thousand one hundred and forty two dollars and a half years later after that was expired after the lease was rejected after the contract was rejected they came back in and said now we're filing a motion two and a half years later so i don't think that gets to judge christians question about why this is a rule fifteen heiner all sixteen mission it is because the court could rule fifty nine a rule sixty b motion because there's no there's only two rules was one of which you can modify in order fifty nine or sixty or possibly fifty two so in this particular case that order stood reconsidering or necessarily i'm just trying to place devil's advocate but i am trying to i am troubled by the notion that this could be retroactively opened up to tell you i think it's important people have predictability you know where they are and if this is concerning to me not that there aren't equities cutting the other way as well but i'm really trying to hone in on your argument and understand it or so to play devil's advocate if you would that that the trustee didn't act the contract which is to assume the contract so it's deemed rejected i'm with you there i think you're right that at the if there hadn't been a unique stench and i don't know how this would happen but there was an extension ok and i don't what i'm what i'm having trouble with is your premise that the court was necessarily reconsidering right reconsidering or changing that order granting the extension as opposed to going back in and extending it again because the order extending it the last one said your last period of time to assume or reject is february th two thousand and fourteen so that  passed at that point the statute deemed rejected provision rejected the contract automatically so now at this point we have you either have to change the statute or the order so by  default since a court couldn't change the statute it had to be the order so they had to seek recourse under fifty nine or sixty two and a half years later i know they don't like that because there's a bar and b too but there is no other mechanism the operated to reject this soon as the period passed deemed rejected is what the contract says a cook exist in his own king it can't it can before the expiration once it expires this cour the nice circuit court of appeals this is a firm and is going to be translated through the entire bankruptcy network there are the instant a contract is rejected you bring in a new tenant you bring in a new supplier you enter into new relationships to mitigate we rejected that in fact in love at the courts politically said and in re tompkins the court said it's your job to investigate the way this works is when the trustees come in they have a broker drive by he gives them an appraisal they look at the value versus secured de actually over time but i will give you another thank you appellee st issue i want to address your honor's is that point center financial is the manager was the manager and always was the manager of the on the operating agreement it's designate is the manager the point i forgive so important to people in these cases yes judge cristol the answer to that is that if you can find a do who is dishonest and lies under oath about the assets of the case and in the event that the court can fashion a relief prior to the bankruptcy case ending closing then you can under nine thousand and six you can find excusable neglect and understand no one has argued the appellant's haven't argued about the findings of something that might make you feel more comfortable about it going to make me feel yes that's the yes there are cases that get close to and there are cases where the debtor has not told the truth about assets this court has reopened cases and has taken assets that are abandoned and based upon the impropriety of the debtor have reopened the case more mischief but as to the mischief of nine thousand and six b i think the judge accoutred got it right in that that the plain language of the one thousand and six b states what it says which is if the court i if the court finds excusable neglect which is a pretty high standard for a trustee then it is true that that a bankruptcy court would be able to say oh yes that the agreement is that correct yes that was that was timely within the sixty day yes rockier ok then the but the time period of extension labs and the trust did not assume the operating agreement relying on mr harkey assertions according to the trust that there wasn't any sale pending this correct yes right so the extension order lapsed  and they and the trustee found out the truth and moved to the bankruptcy court for retroactive extension of the extension order is a correct yes wrong ok so the question is whether the bankruptcy court had the power to issue that nd extension after the st order of lapsed and so why does a bankruptcy court have the power to do that because nine thousand  that's that allows or do we have any case that's as you can know your honor and the one case in the case cited by the appellant which is in re federated food courts is the case that that judge kristen talked about which news which is that that in the bankruptcy case when we were living in this we were worried about brit presenting a case of st impression the th circuit so instead on a belt and suspenders way we talked to the investors which included a forty extension you'd be having a very tough day and you might not even be here right but there was an extent and here there are maybe ok but anyway big but there was an extension and so to go to that i think both of my colleagues have asked the question about why couldn't the court extend its own period of time and opposing counsel's argument is really be too and that's what judge accrued and i were getting out a minute ago i think that part of the argument relies on the assumption contention i should say that or sixty motion but i i think that i just really question whether whether this needs the bankruptcy court which really can be constrained to one thousand and six that is constrain disguised so to say rule fifty nine or sixty motion because the original the riginal motion was to extend the time under nine thousand sex only it follows that any i'm not sure how to respond at this point other than the tell you that this is that that that the court inherently has the power as a trial court to extend its own orders including allow bankruptcy courts to address manifest injustice to the debtors not accurately reflecting their leases just as you've allowed that you've allowed them to address manifest injustice from them not address one other issue which is which is the reason why this may not be the st twelve minutes may not be that relevant equitable in this case is actually moot it's not close  those is valid in the th circuit moving away from ok if you move away from it but you can't structure a form of relief if you're ruled in in the appellants favor say at the so the real estate was sold for eight million dollars the money was then taken pursuant to court order there was another court order that said you're going to we're going to distribute the eight million dollars after paying expenses that was another court order which by the way wasn't appealed it's a final and and there's and if you if you had to fashion relief here now only would have to under an eight million dollars sale under a foreclosure against the saxony entity but then you'd have to go after and even if you kept the money in the including through payment of the proceeds of the management fees fashion a relief here and maybe we won't allow them to dilute the more complicated issue but not to address actually what it does is remember there's two orders here the the order that's being appealed is the order that made us made points out of the manager the order that you are talking about now is the order distribute which was an appeal that all up so you're actually what you'd actually have to be doing is you'd have to be undoing a final order of the bankruptcy landlord in minnesota it's the supply contractor in illinois he's going to see a contract and say ok you've rejected my contract do i get to go in many games with this ruling you don't get to go to mitigate because  always make all this and excludes when they got we didn't know the property was worth x or the debt or didn't tell the truth but the system contemplates that you have to mitigate and all the other creditors again because you can mitigate and that's why this d into the night in be left dead all right thank you