reason it was dismissed and the issues on appeal involve whether or not there was a timely appeal or can there be a timely appeal with excusable neglect  was timely filed within that period if excusable neglect applies to the question is how do we apply excusable neglect under the facts and circumstances this case as we all know pioneer sets the standards for excusable neglect which is applied in many many circumstances where that phrase is employed in the rules of bankruptcy and in other rules as well and the pioneer standards set out for factors and so applying those factors to that they set out for factors but those aren't exclusive factors those are the main four factors that the supreme court has ruled on there are other factors and in this case there are a host of factors that are relevant and it seems that the principal factors construed that and how the court treated that motion with the motion was caption with the specific name the motion has a literal meeting no question about it but under the circumstances and considering the status of the case in the  what rules might be a pleasurable and the superior knowledge of the judge under these circumstances and the dilemma that the plaintiff you were in at that time those factors inform the court as to the case law on construing pro se pleadings such the discharge ability of the claim having had a judgment entered against them there were very limited avenues that legally were available to them at the same time this was going on in this very court the bapi there was another proceeding involving discharge ability in which the post judgment procedures contesting a ruling are different and because the plaintiff at that point was pro se or at this point steve conway was pro se he was informed by that the procedures that he had been employing in the other case which seemed to be functional as far as preserving time to contest this judgement so in the bankruptcy court the tr seek post judgment review and the common thought is that counsel yes how did he know when he gets a piece of paper that says motion to extend time and it doesn't refer to preservation of anything either in the caption or in the body of the motion and i just know that he was actually asking for something completely different than what the paper says and specifically says to preserve time to file a motion for reconsideration does not use the word notice does not use the word appeal despite the fact that conway has been involved in multiple litigation including appeals before that judge and others cutaway was involved in and other litigation that's correct but he he was represented by attorneys in most of that litigation and in this case he was represented by an attorney the whole time during this litigation he had not had a period when he was not represented by an attorney but in an answer to your question the judge is informed by the other factors in the case and what the upper left most factors for me because i'm trying to get around the fact that i mean i sit on a trial bench as well and i get a piece of paper in front of me and it says i want this relief and if it's found by a pro se party and i'm supposed to then take the piece of paper take all kinds of circumstances into account that are identified in the paper and ignore the plain language of the paper and grants an entirely different form of relief than what was requested that some of the substance of your argument direct that is that is part of the argument keeping in mind that at the time that the judge ruled on this motion the david find wright who was the prior attorney had been terminated and the judge was aware of that and that conway was not himself an attorney and presumptively wasn't aware of the rules of procedure and as much detail as an attorney would be presumptively order how or why are we presuming that well i'm going to say that a pro se person would not be presume to know the rules of procedure in the same sense that a lawyer would know the rules of procedure isn't the presumption that they're obligated to be to know the rules and to abide by the rules separate apart from the pleadings i understand we're supposed to construe pleadings liberally for a pro se party but i'm unaware of any rule or authority that says the pro se party gets a pass on the rules of procedure so there's aspects of the rules which are time sensitive ok like the time for filing an appeal there's there's no case that i'm aware of that grant a pro se party more time to do something that has an official jurisdictional deadline to it i'm not arguing that point i'm arguing that because of the certain circumstances in this case one judge gets a motion from  price there is no there is no really it's a could be granted even if you read it literally i think the judge is on notice that the pleading is really seeking some other form of relief and i think yes i think a judge has to know if it's a pro se plea in particularly that that party is seeking some form of relief and if there is some question about i think rather than just outright and what this judge did was he did not rule on this motion until after the deadline had actually expired which put that particular pleader mr conway in a in a and it terrible dilemma because it was not ruled upon until january the th which was long after the normal appeal deadline would have expired it at the very minimum the judge should have thought well geez if i rule on this right away then maybe he'll get to his senses and realize he's got three days to take some other action but that wasn't done so that's part of the abuse of discretion in this case is the ruling on that motion by denying it absolutely and denying it at a time when there was no further remedy for this client other than the excusable neglect remedy the role you're describing sounds a lot more like counsel and it does judge i'm sorry i'm sorry the row you're describing what you say the judge should have done sounds a lot like counsel not judge well i from the cases i read about pro se pleadings the judge has to take on a somewhat of an imaginative construction of how pleadings are filed some of the pleadings in particular that heresy case are pretty strange constructions of pleadings but they're strained for the reason that the judge has an obligation to determine what is the most beneficial construction of that pleading that can be imputed to it even if it's literally asked for one type of relief if that relief was impossible and meaningless the about how was it how was this one impossible or meaningless well because st of all there is no such thing as a motion for reconsideration in the trial court i don't know all the attorneys that appeared in front of me understood that because i see them all the time i see him all the time too and in david finder and in one of the other cases fall a motion for reconsideration but courts seem to routinely even when filed by attorneys you know reconstruct those as the the rule sixty or rule fifty nine dollars motions which is what they have to be one or the other when a pro se pleading comes in like that it could be and i've discussed this in my brief it could be construed either as a motion for extension of time to file an appeal which does kind of make sense because he was trying to get an attorney to take some post judgment action and that motion is allowable under rule eight thousand and two so or it could have been construed as an attack on the judgment for adjudicating the case without having an attorney i mean he had an attorney up to a point he brought an attorney to court the day before the case was supposed to be heard on separate teeth the attorney says he's not going to take the case and then the judge rules well i mean when conway files a motion saying he needs to get another attorney that's sort of indirectly attacked the fact that the judge ruled without an attorney because he needs an attorney to present his argument including the motion to dismiss so i mean that's not totally strained interpretation you're going really short on time so come quickly get to any other arguments you have that support  excusable neglect standards ok so if we look at how the the judge ruled and we're looking for abuse of discretion the discretionary rule requires the judge to employ the pioneer factors what did the judge do he said local rule two hundred and ninety one says he's got an attorney of record end of issue we don't even look at the pro se rules so the judge didn't even look at any of the other factors that apply well local rule two hundred and ninety one doesn't govern the attorney client relationship missouri disciplinary rules govern that relationship and while he was still a lawyer he may have failed to do certain things that he might have been obligated to do but that would give your client a malpractise action against him it doesn't mean he was not  lawyer i understand that he was the attorney of record but i think when we get into the argument of excusable gluck i think we have that's a factor ok and yes there may be a malpractise action but that's not what this court should be concerned with this court should be concerned with what do we do with a client in that circumstance what is he to do if his lawyer won't withdraw like he supposed to and if his lawyer won't protect all of the protective actions that he has to take what is the client to do so i think that plays into the excusable neglect argument and particularly considering that his motion for extension time which of whatever he thought it was was not even rule on until after the deadline expired i think those are factual you're well into your yes i know him if you you wish to reserve the rest i better reserve the rest ok thank you case we would acknowledge that our brief an argument today is a little nit picky with respect to the procedural rule and that's for a reason the procedural rules governing a notice of appeal from a bankruptcy decision are about pioneer and another holding that came out of pioneer that wasn't mentioned is the supreme court pointed out that the court of appeals in that case failed to recognize that the error of counsel should be bankruptcy court that mr five hundred acted or failed to act as a result of excusable neglect just that mr conway may have made the wrong decisions in the filing of his pleadings and that we would suggest motion to withdraw until the date that the dismissal order was entered and his motion to withdraw it was not granted until january th which was well outside the fourteen day appeal period so in essence the bankruptcy court preserved legal representation during the entire course of the fourteen day appeal period and during that time mr conway was capable of filing a motion for extension of time to file a motion for a rehearing capable of acting he may have taken the wrong action but that's not the court's part and it's not the court's shot to look behind the document that seeks relief in the form of an extension of time to be to mr burns argument that the court was obligated to construe it in the most favorable way and in particular to look at the fact that he was apparently asking for something that could not be granted and therefore the court had to stop and take their answer and the bab said look just because you're pro se doesn't mean you don't have to comply with the procedural rules that pertain to your bankruptcy cases ok but aren't those two separate issues one case he does have experience filing things on his own he simply by all the wrong thing so attorneys as a mechanism for for gaining an extension of time to do things in bankruptcy court and as we outlined in our brief there's also a continued pattern of conduct that's gone on over the course of the ten years of the  of time to actually be a motion to extend time to appeal as we mentioned the words appeal in the us are in there so i think affectively that the bankruptcy court did not abuse of discretion in finding that that that that motion they want offered an opportunity for a hearing and that the court abused discretion and ensuring that order and that is also appealed number six thousand and two there were their considerable personal expense in addition the conway parties initiated the current boss suit and federal district court it took us about a year to get the case referred from the district court back to the bankruptcy a petition to determine discharge ability is dismissed there is no determination of discharge ability and therefore the status of the dead is dischargeable remains uncertain there is in fact i didn't cite it my brief but there is a case that so holds and as a result we've essentially accomplished nothing because there was no counter claim by the heils to determine discharge ability so the result of this case is not this debt is not is dischargeable it is that it's still not determined ok of certain funds on a certain date for certain reasons not the original investment this adversary contends that the transfer when the original securities were sold was a fraudulent violation the securities act under eighteen so  the trial court did not follow a pioneer they latched on to the concept that the pilots were all represented by counsel through the important dates and said counsel didn't do the things they were supposed to do well of course i mean  court showing that he was still asking fondren to act even in late november after he had supposedly fired him on november the th that's a true statement your honor and so the question is you know how to how do you as reviewers of the fact the term and what the relationship is the best i can tell you about that is the december th transcript of the hearing is before you when finder and appeared and the judge said what are you doing here and a new attorney appear to put us in a hiatus but as we know from examining the back record conway was already filing pro se pleadings in the bapi after he told finder not to ask him to do more things any and find r didn't do any of those things so my time is up i thank you very much for receiving thank you