because we couldn't understand an english notice to us yes and so and that's what the bankruptcy court decided in the district affirmed so now i hear that but as to that issue what would be your best case that we nd quarter of a few would reverse that very discretionary fact specific conclusion that in fact the email showed english was understood adequately in the back of the court journal still we argued about the the district court brief as well it was brought up now i know but to the bankruptcy court it just came up that the comment by the attorney was just maybe it was you know you said generally here is how we get these documents there translated for us they come to the central authority yes but no case law was cited as to the a playability of the hague convention and it wasn't in the brief so then the bankruptcy court doesn't address the issue maybe that's a fact but  do argue that that was a requirement i clearly stated that during the hearing to the bankruptcy but the court didn't address right i said there was a requirement ok it's clearly sta your case that something that said arguably passingly clearly so that the bankruptcy court didn't focus on it when the bankruptcy court made its ruling did you object and say you forgot the hague convention argument we make that objection  did raise it india district court because bankruptcy court did not address it in their order we believe that they should address oka who had make the argument yeah there's an important issue there so the best case said the hague convention would apply to a notice for a proof of claim as one yes for two cases i would like to state the actual official title of the hague convention as called the convention on the service abroad o and according to both cases it doesn't it's it's look at any bankruptcy notices and it only mentions about a document when he's transmitted or served to a foreign party the hague convention applies in this case june is still with a th party and it was a party to a judicial proceeding and according to a convention should apply under the hague convention that the document that was served was in a language that could not be understood by the recipient is that the only objection you have to the service and that you think the hague convention a s no that's not correct that if you're in sent over to the central authority of south korea south korea clearly objected to that option and requirement  prior to the time that you receive this sir your client received the service is there help me out with this timeline there's a communication and e mail communication certainly i'll can continue to ask my question why you know you do that  there's a there's a an exchange of emails inquiring about well and they say they say what they say enquiring about responding and so on and so forth is that prior to the time that you receive extend another credit of hundreds of thousands of dollars and six months later what does our part do they thought the bankruptcy and now it and they're trying to deny our claim i think that's very very unethical and it's bad thing and we're you know slapped in the face because of that these i remember the record i think that you had counsel but it was italian counsel correct the record reflects that you had come before the deadline expires you are communicating with counsel about the fact that value part is not pain well at the time the genius still did not have counsel at all not even tahlia counsel through the deadline so that they didn't they had no that we won't somehow hinge on to play and get in the door so i thought there was also a very very bad faith so basically you went from as i told you earlier it went from just still to to the term bad faith but it isn't the appeal that you're taking here putting aside the compliance with the hague convention isn't the appeal about excusable neglect though and that there should be some forgiveness in terms of the length of time to file the proof of claim is not the argument of the argument isn't rooted in bad faith of the debtor it's rooted in whether or not there's an excusable neglect by your client the process of the notice of top of the eleven bankruptcy should've been done properly what's your bet me pioneer is the supreme court case governing excusable the like what what's your best authority where a circuit court reverses a district or bankruptcy courts decision not finding excusable neglect well i don't think no doesn't go against i'm just asking you for it seems what i did my st question to you was this is a highly fact specific determination i didn't on my own find many cases where reviewing courts reverse a court that is listen to the facts listen to the argument looked at the emails and decided you know you were sufficiently informed your arguments about creditors yes and yet we don't see a single case district or circuit anywhere in the country saying the hague convention service requirements to a central authority in translation apply do it we don't and this is a very st cas e when it comes to the bankruptcy that would be a very significant expansion of obligations miss powers as you point out the service agent instead would have to send it to a central authority have a translated if in fact what's going on here at this chapter eleven notice stage is just the debtors got to tell anyone who might have an interest hey be aware this is occurring you may want to file a proof of claim that sounds very different than serving someone who's a part adversary party in the case well the might been of the reason why there haven't been any cases because most creditors are very interested in their claim and they want their claim to be included yes and there are no cases where day after actually setback and late because most great credit is falling time and that's why this case has a hasn't been any litigated but we didn't and that's what we were here today isn't the real reason you didn't file within the time frame because your general manager was on extended leave and nothing was being  him while he was the general manager actually left the company he wasn't not only leave he left the company and he was the reason only reason why we didn't follow on time because general manager was the only person who could speak english and if you know if you if he's the only one spoke english but as judge kind of points out there was someone who's speaking english that's replying in the emails in the record but you know he and i have also had no clue of the communication or dio legal process of what to do what the document will that's and he was not you know so they got it they got notice they just had no clue they had no clue they had evolved and i'm not sure translating through the central authority would advise them on the law that may just be they didn't get a lawyer or a link at least they if they if they got it and you'll get to hear them and then get back up wonderful thank the morning your honour's timescale for at least the part incorporated company may please the court one thing that was stated during appellants presentation that these become erected i don't think it's entirely accurate was judging the hearts question about the nature of value parts dead to geneva or how i partly have been indebted to engineering i don't believe there's any evidence in the record that value part was ever directly indebted to denial and believe the testimony in which guy are ever would have been indebted to ginny all was through this guarantee which expired before i even filed bankruptcy you were the attorney at the hearing correct yes sure arlo's when i when i read the transcript it didn't look like you were startled by hague convention argument and this is a compliment to you it's three pages of transcript he brings that up and you says that you say that's a nonstarter you don't object and say hey he hasn't brought this up i don't know where he's going with this so i guess this is to the preservation issue it looked like you were ready and you were pretty confident that it was addressed you said no therefore do you accept that we would be reaching the merits the merits of the hague issue yeah as the basis for excusable neglect i don't believe it was properly raised before the court i went ahead and responded to because i didn't want an issue to the raise and and not have anything to say about it so i did respond to it i trust my instincts on i mean i'm a tough eleven bankruptcy attorney and been doing this for eleven years i understand how notices or services adversary proceedings are contested matters the nature of the sensually the what the boy can case in the volleyball case raise the distinction between matters that directly arise out of litigation between two lawsuits these are for things that directly impact a foreign party the court is going to take in persona on jurisdiction over this party a simple notice isn't going to cut it for this kind of those your instincts and i love it when i have people with specialize knowledge but now you have a chance to research it or you even are you doubling down on your confidence because i think it we would be the st circuit that would draw that line which could be very consequential globally for small debtors you don't dispute there are small korean firm that's primarily going to someone else to sell in the u s so it it seems to me linguistically and legally they really might not know how our chapter eleven rules work i can't speak to their sophistication on the child i know process but have you researched it and can you tell me here's a case that with the appellant's argument regarding excuse of excusable neglect in other words if if it's service of legal papers then an answer is required in the penalty for not answering of course if you run the risk of having a default judgment against you whereas a notice that's provided and it's not in compliance with the hague convention the penalty for not responding to that would be well now i now i now understand that which should have been translated so that would play into the to the excuse for lack of a better term of excusable neglect in other words that the ramification is different for service and notice and that's the argument that analysis of each of the factors and of the on the pioneer analysis that's why i think even if they wasn't directly name to mention it was it was considered and baked into into the plan or analysis but neglect is just are there factors beyond the reasonable control correct the reason control factor is one of the four pioneer factors force usually what's wrong here i mean is korean organizations clear even from the emails they're very broken in their ability to communicate in english and then we find out that the person that's responsible had left the firm you heard his assertion today they didn't have an attorney i thought that they had an italian attorney they did and it's a of a bankruptcy court saying no expects fusible neglect in similar circumstances linguistic and legal problems foreign country credit or also to the two answers on the linguistics problems i would say are the linguistic problem cases on all force factually for an alleged technical service to fall but the court says no matter how serendipitous actually notice is achieved it accomplishes not only  and its findings on that issue which ultimately found it alternately rejected the language issue and found it exceeding neglect was not proven that ultimately despite the language barrier the e mails and also bowers testimony about the telephone conversations that she had in english was not only the e mails it was also telephone calls that bowers testified to that i believe are the solid evidence in the record that supports the court's findings that the ability to follow  timely was certainly within the reasonable control of the the appellate that's helpful would you have a thought on what i thought was italian counsel i believe and again i'd have to go back and look at the transcript but i thought their representative testified that they did have counsel because they were pursuing the debt against luzon and they were also negotiating the collection of the debt in italy so they did they didn't have an american an attorney trying to collect the debt in the states i believe they did have counsel for the specific purpose of collecting this debt before value part file bankruptcy i recall that of the a i think it's important to draw a distinction between what the hague technically applies to or covers versus its mandatory and permissive provisions water splash says that it applies to any  documents that need to be served abroad but does not apply to any documents that do not culminate in service so the question becomes is service a term of art the service cover only service of process meaning the complainant summons or does service cover other types of documents that are outside the scope of the complaint and the summons based on the case law of read and the research that we've done i do believe the hate applies or or covers documents other than the summons and complaint the question is what documents are mandatory what documents are permissive if you look at the text of the hague itself there are two chapters there that are there distinguish here there's chapter one for judicial documents the text of the hague itself draws a distinction between judicial documents that must be served in the hague those are mandatory versus extra judicial documents that are permissive they're not required to but they can be served in the hague if that  we could not find any cases that define what judicial document is vs what an extra judicial document is so we had to refer to them and that the text they did sell also doesn't tell us exactly what they are they just say judicial the practical handbook on the operations of the service convention defines judicial documents as instruments of contentious or non contentious jurisdiction or instruments of enforcement these include routes of summons defendants replies decision decisions judgments delivered by members of every judicial authority as well as a witness summons and requests for evidence conversant in the handbook defines extra judicial documents as differing from judicial documents and that they are not directly related to a trial but they're also not strictly private documents such as a will or contract rather an extradition document are these this mass pil documents of them in the middle they require the involvement of a judicial officer or authority such as a bankruptcy court they also include in the specifically mentioned by the handbook notices served by creditors upon debtors so although it's the inverse here we're still talking about notices between obligated parties on the nature of debts and i think that's exactly what a bankruptcy  you were talking about this handbook and yes in the distinction between judicial and non judicial documents are actually extra judicial arguments that we actually have to schmuck in water splash were two supreme court cases that of a complainant summons so we want to take a look at what the lower courts have discussed on specifically this issue in the context of bankruptcy notices and so on in two thousand and eighteen this case aside in our brief it's the advanced watch case specifically applying the holdings of schlock and water splash the southern district of new york states that the hague convention only applies to service of process on foreign defendants and  excludes judicial documents other than the summons and complaint the court held the documents under rule five as opposed to the summons and complaint under one for may be served outside the scope of the  and what i really like about the advance wash case is that's in the context of there were two sets of documents that were served that's a preference complaint case that's an adversary proceeding the plaintiff's counsel serve a summons and complaint on the preference action against the defeat the foreign defendant through the hey they got a default judgment and all of the other documents the notice of default the nose of hearing on the default everything outside the summons and complaint were servia st class  in the form defendant in the bankruptcy court goes through the analysis of why service was proper under the hague for the summons and complaint and why it was also proper to not have to go back through this the hague for anything other than the documents governed by the two thousand and two rules as opposed to the seven thousand rules and in the bankruptcy code under those different chapters or sections the seven thousand or the eight thousand series explicitly incorporates the hague by reference or not yes it does your honor rule seven thousand and four incorporates rule for the federal rules and rule for itself says the hay should be used when serving for the two thousand and two clickable here has no reference no it is not your  but it is important to touch lastly on ultimately the impact of where all of this discussion about the hague fits in as pretty we can get in the weeds pretty fast on on doesn't apply does not apply alternately even if the court found that it did apply we would then have to take two more steps for intimately and we would have to find that the basically ignore the actual notice that the appellant proceed ignore all the court's findings and really overturn court's factual findings based on the record the spars the awareness that appellant had the sixty days opportunity that they had to file the claim and find that based on a pure allege service technicality that that somehow resulted that cause the appellant to no longer have the reasonable control to time the follow a claim and even if we got to that step we with then still have to weigh that reasonable control factor against all of the other pioneer factors none of which went to the appellant at the trial court level the banks the court made specific findings on the prejudice to the debtor the prejudice to the other creditors the length of time and the delay or the delay that that length of time would cause in the judicial proceedings alternately we get to the same place and judge clement hit our very good point that there's no evidence in the record that had this translated document been served to the hague that result would be any different the testimony showed that there was one person  the company who was qualified to deal with the value part the court made specific findings that that person was gone from october of sixteen through february of eighteen there's no notice in the record that any action would have been taken had we this case and the record supporting the banks the court's findings that those findings cannot be overturned unless there is clear case differently if the evidence is plausible and a lot of you in the record in its entirety there are viewing court may not reverse even though it is convinced had it been sitting as the trier of fact it would have weighed the evidence differently when there are your other first five value portillo course says hey conviction doesn't apply at all and they change a position now they say hey conviction applies but if you lead a brief only applies to some one single place now you heard  because genelle loses their rights to their claim if they don't the apply up in time and properly and this is the case right now that needs to be decided and it would have a det before they do it they did after valuable file for bankruptcy but before their deadline to notice did they have counsel at the time these communications are going oh they didn't they did and this happened after and regarding the difficulty of translating the bankruptcy notice as well as a proof of play it took me about an hour and a half to translate is not that difficult it's not very lengthy either and sending it over to the central authority compared to send you directly did you know that's just a matter of you know sending it is not that difficult either and it took me five minutes doing an internet search to find the south korean central very just type in south korean central authority for a conviction valas right there all the address telephone numbers let's say everything's there it wasn't very difficult but you know value part of mentioning the lower court that they did everything that they could you know your honor you know but what can they do now what they didn't do everything that the good they did follow the rules of the hague convention and it's not that it wasn't very difficult for them to do so