you may thank you you come to the podium  the record in here hearing clearly reflects that appellant produced overwhelming inadmissible evidence which was not excluded in support of its motion to dismiss which the court the bankruptcy court of basic yes that i really appreciate the detail but the allegation of the mistake is that the bankruptcy court didn't consider all this other evidence or act ok so you're not saying that we should well as a matter of law that the motion of this mission of  was heard on three issues there were insurance had expired on the property the property was in a deteriorating condition and all the records we had pay off whatever was not a proceeding was in that motion t occlusion arguments kind of going in this case and maybe when you get back up talk about what they're arguing on appeal as opposed to what the judge said below because on appeal they're arguing the mcclish of effect of the plan saying that the judge necessarily determined issues of good faith filing at least and good faith presentation of a plan and so you can either deal with that now and get into a five minutes all or just take a five investigation we would have ever known that he was hiding in lolly are you on the phone yes i am your honor thank you very much let me ask you a question are you on a cell phone or a landline your i am on a cell phone i would not able to get on a landline with one and i apologize well our order was quite clear you want to allow you want to again i apologize i understand the court's order i tried to comply with the order i was unable to comply with it this morning and i apologize for that well again explain why you were unable to get that to a hotel room and take the call and then go back to your frankly i have a lot of responsibility i'm taking a forty five minute break right now and for that the time structure did not allow me to get back to the hotel room i thought i was going to be able to but we had a meeting starting at eight o'clock this morning on the west coast and so i wasn't able to have enough time to get back to my hotel room all right we're going to allow you to argue mr ali but i want i want to emphasize to you this behavior does not does not reflect well on your attention to the summarize this appeal is the pilot is asking what is an abuse of discretion for the bankruptcy court to enforce the local bankruptcy rules and as we have set forth in the opening brief in the excerpts of the record we would ask the panel to look at this appeal and not simply in the vacuum of the third motion to dismiss but in the first motion to dismiss the problems there in the second motion to dismiss from the problems there in but if it's that you will let's assume you have the right to terminating sanction did he make any of the findings that would be necessary to support that conclusion no the court did not proceed ok and i think your hon my my my point in raising that issue is that this appellant had numerous opportunities to get it done correctly and unfortunately for it it was not able to do s something as simple as in the first motion the motion the proof of service as well as and in the second and then we when we finally get to the third motion to dismiss there are still significant procedural problems that the appellant was unable to overcome and my my opinion is that normally a judge can't even get to the merits of the of a matter unless the matter is brought to the court in a procedurally correct correct yes that is correct so her argument is it their argument on appeal is that notwithstanding that which is frankly not something that i'm particularly troubled by the judge was in error and that there was substantial other evidence he said on the record the two thousand and four examination as is the entirety or most of it but she says that she's saying today and earlier not true wasn't the significant additional evidence other than the two thousand and four examination transcript well we think there was evidence but it was we believe it was inadmissible because it lacked foundation so for example when did you make that argument or did you make that so we believe that although there were declarations out in support of the motion we don't think they lacked appropriate foundational support for the court to consider the further the purpose of the local rule is to give the parties who attended this deposition the opportunity to review a record and make comments the way when any deposition and to streamline the review by  allowing the judge to focus on the particular aspects of the testimony that the proponent feels is appropriately focused on and allow the opponent to highlight things that might be exculpatory or otherwise explanatory i mean none of this goes to the fact that two thousand four exam didn't occur right i mean occurred so i'm not sure what i mean by foundational in terms of the other documents well well what i mean foundation and specifically not in terms of various documents but in terms of statements extent they're saying that a party opponent said this and that's adverse to his interest isn't that outside the hearsay rule your honor you are correct that it that is outside the hearsay rule but i believe judges olo held that alone was not sufficient without the without the two thousand for example where did he say that he well he did not he did not specifically say that but what he did say was he said for example that at the outset these enter junctions are subject to substantial weakness and that every single one of these have been to objection lacking foundation including where it was clear and so when i when i read the transcript it seems to me that judge olo looked at this and said without the two thousand and four exam the declarations are insufficient to meet the creditor's burden of proof where did he say that where is it your honor is it is not know in fact he says quote i think i do have the discretion of i wish to to overrule all of them on that basis but instead i will rule on each one individually so the court looked at it from a general perspective and then you look at the evidence your objections individually and my reading of the transcript was he looked at the evidence or objections of the of the debtor and felt that they were well taken that the declarations of the moving party alone were insufficient  to meet the creditor's burden of proof on the motion to dismiss now he also had substantial documentary evidence today not yes he did ok and then and i must assume that he looked at my my take on the transcript was the motion was denied primarily because of lack of evidence number one and number two the procedural rules in terms of not properly marking the two thousand and four exam transcript pursuant to the local bank could have taken the debtor's two thousand for example at any time before confirmation of the plan and any and in this particular case i think that that's an important issue because the chapter set was initially a chapter seven thousand event of two thousand a thousand four exam if they wanted to do so and for whatever reason they chose not to do so well the council and this is this is a point of confusion for me and maybe you can you can help i didn't see the judge did and i was preclusion the booklist of effect of the plan is there anything in the reckons that suggests that was the basis for his decision your your honor there there isn't anything specific on the court  and so that statement by the court is not clear or specific as to issue preclusion of the prior motions or of the plant well isn't there some language after that that talks particularly about the motions yes there is and there's a local banks rule in the central district that specifically provides that when a a motion is denied and a party brings a no other motion same motion that in that motion they must disclose that they they filed a prior motion and that was denied and i believe that was what the court was focusing on in that statement and in this case of course we had to play motions that we both had and the third motion didn't disclose it didn't address it didn't explain why they were why they were denied and i believe that's what judges all that was pointing out your honor mr lawley the first two motions i asked the same question of counsel when appellate counsel the first two motions were denied for procedural and service issues isn't that correct yes your honor that's correct so neither of the first two motion were denied it wasn't disclosed and then and then the creditor brings a third motion and i believe the last point that i would like to bring out is that as the tunnel is well aware from the pleadings as well as  approving the praise or came back and said that there is insufficient equity to support any collateral for this when the parties signed a stipulation of removing the lien there is an order approving that and is set forth in numerous pleading creditor is basically arguing well we want the case dismissed because we did not want arlene strips as as the penalties where from the docket that we've provided the creditor never filed an appeal of the order stripping its junior lien and so that's that's a final order it's an unappealable order but yet in the pleadings as well as on appeal this predator is basically trying to argue well we want i want my lean to remain and the have to do something that was questionable i mean i get your point that's correct i don't think there's any doubt that's the motivation for the actions they would like to have been doing that but it seems to  don't think my client did anything wrong my client amended the schedules correctly as as as the panel pointed out in fact a debtor has an obligation to amend the schedules when required or necessary to do so and that's what my client did and i sat that's  for proof and the problem is that hasn't happened yet there hasn't been a full hearing on the merits of this and that's really that's the main concern i think the town house today well i and i can understand why with all the procedural problems that that is created oh no fortunately but but not not to sound too too harsh but but that's their problem because you know i don't think the court can get to the merits unless the creditor brings that brings the motion correctly before the court and then once that's done correctly then the court i believe has an obligation to look at each issue on the merits but we've never gone to that because this creditor can't seem to know since they can't seem to get it done correctly and as we all misstatements one i notice in the paperwork there's confusion the only objections made in the third motion to dismiss were my client's objection that's what that was a question and he refers to and that was another error that i timely opposition in this case that clarified that i also wanted to clarify that i don't know how to get there are opposing counsel to read our motion to dismiss it specifically states in the motion in my declaration that they have supposed description of all three motions to dismiss that explains why the first motion didn't have the same issues as the second  i specifically asked the court to consider the evidence in all the statements we provided the documentation provided the admissions mr rose and my dad liberations you never mention it you can