yes good morning here honors may please the court steve burke in for the appellant i'd like to reserve three minutes if i might at the end of argument for a bottle so transitioning from the criminal world to the hyper technical world of bankruptcy this case is about whether to kick margaret kinney out of a chapter thirteen bankruptcy having made five years of plan payments because she was nine days late with her final plan the facts are not in dispute appellant filed chapter thirteen on october twenty five two thousand and thirteen a plan was confirmed in two thousand and fourteen it was for sixteen months to five years of the st planned payment was d the extent that this court is reviewing the bankruptcy courts interpretation of various code sections will get to those sections we believe the analysis today should be done over so we started our argument your honour's with a concession to state the obvious debtor cannot confirm a chapter thirteen case that goes beyond five years a debtor cannot modify a plan that goes beyond five years but in this case the debtor never sought to modify or confirm a plan past five so so this hypothetical debtor goes into court if it tries to do it through formal channels through a motion and then you have hypothetically is it real why this  debtor does gets dismissed or converted in voluntarily to a chapter seven and yet she can do the same thing through an informal sure that she could not do through a motion and that seems odd a back in two thousand and five a lot of the discretion was taken away from these judges but we kept one thousand three hundred and seven and as i said the eleven prong test a trust a judge can get rid of a case for unreasonable delay by the debtor it's prejudicial the creditors it level that causes a case to be dismissed i don't think it's necessary to raise up the flagpole the restriction on the five year confirmation or modification limits when there's such in this case and min express requirement the such payments meet be made within the five years and then relying on the clouds rd circuit case it also determines determined that instead within its authority to grant the debtor reasonable grace period to cure even though the grace period exceeded five years the debtors payment was still under the plan and th twenty eight dollars then requires a discharge in fact home and goes out of its way to point out the th circuit has says shall mean shall and and twenty eight dollars has a provision that once that final payment has been tendered the court shall in at the door the order of discharge and not to say it cures all kinds of ills prior to but pretty close once you make that final plan payment  bankruptcy court is required to grant destroy but earlier in your answer you said that under one thousand three hundred and seven c the court always has discretion because the court may does not is the opposite of shell in the bankruptcy court always has discretion whether to dismiss thirteen or not to dismiss is there a point or to convert to a seven in voluntarily or not well i think what you're telling me now matter we don't get thirteen no seven motions at the end of the plan we usually get them during the course of the plan for material default and it would seem to me in this case if the payment hadn't been tendered and the issue was raised a practical matter doesn't come in at the very end of the plan but possible i don't know if that answers the court's questions i did want to mention the class klaus has a five pronged test the brown case very similar klaus our favorite case out of the rd circuit says the question is whether the debtor substantially complied with the plan the feasibility of completing the plan payments if permitted whether allowing a cure  creditors whether the debtors conduct is excusable or culpable the availability of relative equities brown's very similar how much longer is it going to take has the debtor been diligently making plan payments how much time has elapsed  under either the klaus or the brown analysis we just don't think that a car accident that was caused by no fault of her own at the very tail end of the plan and once again i point out that h s b c was current when she  filed is grounds enough for for the bankruptcy courts who have wanted to initially dismiss the case but allowed for a conversion you mentioned at a number of times i'm curious whether this is indispensable and so much discretion away from the judges but as i said one thousand three hundred and seven dollars continued the tradition of at least giving them some discretion and among the eleven prongs is whether there's a material default again so it's up to the courts discretion whether or got two circuit court cases on our side we've got a collier on bankruptcy on our side we've got the chapter thirteen trustee i believe filed an amicus brief on our side we've got surf eat lower court cases i'll  heels of family deaths debtor failed to complete payments within the sixty months the black case finding no provision for dismissal of a chapter thirteen where the payments went beyond five years but otherwise completed during the duration of the  payments are late but the debtor substantially complying with the plan the court should allow the plan to be completed within a reasonable time after the stated term focusing on h s b c  it points out that the bankruptcy court offered a conversion we don't think that's a particularly generous offer to my mind it wasn't acceptable to the debtor to file a seven she wanted to complete her thirteen oftentimes conversion is not an an option in this case she owed a goodly amount of back taxes and so there are implications as to interest and penalties that would be abated so judges if i'm on reserve the rest of my time llants opening brief in this case after the court asked us to initially we did not file a response in this case because we think that judge brown's ruling was sound and frankly we don't have an axe to grind with mis kinney we we don't have any problems with the position that she has taken in this case that she tried diligently to make her payments throughout the chapter thirteen plan that that's a difficult road and she made it most of the situation where the debtor was ninety days late this is not a situation that is analogous to the only circuit case that i can find on point and that is the class decision the facts in this case are actually quite a bit differen her finding and we'll talk about materiality in a minute but i want to go through the facts to show that difference in the factual recitation but miss kinney and  correct that most of the plane payments were made over the course of the chapter thirteen plan but the problem comes toward the end of the plan indeed in november two thousand eight hundred dollars start the st payment was due in november of tw notice to to tell the trustee and the court whether there was a continuing default or anything amounts that still needed to be sure my client responded in july the end of july and said there's no default at this point in time then immediately the payment wasn't short a few dollars it wasn't nine days late it was simply not made then came october it was an october st payment due to the september st payment that was not made is itself a it's not late it's not short it's immaterial the fall then comes october one the october payment was not made it wasn't short it wasn't late it simply was not made then comes november what the november st payment was not made it wasn't short it wasn't late it was not made the same thing happened in december that and now are past the five year period that expires in november in december the december st payment was not made it wasn't late but wasn't sure it was not made so at the end of december only a few days left until the january payment was my client filed a motion to dismiss  seven which as judge bacharach has pointed out provides this discretion these eleven factors that we're talking about for dismissal or conversion my client didn't file a motion saying hey you're past the five year plan and that was the basis for the motion then comes the january st payment it was not made then comes the february st payment it was not made by the deadline shortly after  later that's when the payment team but at that point you're well past the five year limit you're well past curing something that's a few days late or a m fault and that really that materiality distinction and whether this was a material default there in lies the answer in distinguishing the class case and the brown case and some of the other cases that have been cited by the debtor in this particular case it's that class decision focused on a situation were and it's the only circuit decision that i can find that's right on point focused on a situation where the debtors had made all of their payments the plan in the class case required one hundred and seventy four thousand and fifty nine dollars in payments over the course of the five year plan and so the court did the math and the court found well actually they pay one hundred and seventy four thousand one hundred dollars they actually paid just slightly more than what the plan required in the class case and it was unfair the situation was unfair because the trustee made a mistake the trustee didn't notify the debtors of some additional charges and at the very end of the deadlines approaches the debtor and says there's more money and moves to dismiss well that's in making plan payments that's a default that was unknown to the debtors and his past week different than the material you thought that actually happened in this particular case and it's  didn't file a motion saying that the court must dismissed the case my problem that is correct but the judge there and this goes to judge people's question about the remedies that were involved that there are multiple remedies that the court can use and section that mr burton has cited as requiring a discharge that section says that the court shall enter a discharge if all of the payments are made under the plan type of analysis but the class decision went into one thousand three hundred and twenty eight b says you can still get a discharge even if you did not make all of your payments but you have to show that it was not the debtors fault that the debtor was not culpable in causing the default that they made the payments but they could not complete the plan and so he never filed the motion to do that in this particular case you never saw a completion discharge because what he's trying instead he never sought a hardship discharge is what he's trying instead as a completion discharged and the court has never been presented with those facts and that know judges and counsel just make sure if you would that your volume isn't too high it could just be that your speakers your microphone is picking up what your speakers this is blasting out so if you have a high maybe just turn it  under discretion under b has to be requested before the expiration of the planned time yes your honor ok at any time after the confirmation plan and after notice of the hearing the court may grant a district to it better that has not completed because it was never requested but is there any reason it would not have been granted in this case i'm not aware your honor because again those elements about her culpability have never been discussed but but but i mean with that mean that the show szell conserves it is the public policy concerns that might drive us to a broader construction of thirteen or seven could it disappear because there is an alternative that doesn't require any alternative remedy in fact of a few different alternative remedies built into the code i see i see my time is up if the court would indulge i'd like to say a couple more words about one thousand three hundred and twenty eight and payments that are made quote under the plan but i understand my time is up and happy to rest at this point pushing one to take an extra minute thank you judge there's when there is a change up or down in the payments amounts or a change up or down in the time amount so if you want to pay off a plan early in your to perry one dollar that would ordinarily be a good thing you still have to request permission that's a modification i finish up the plan so whether you increase or decrease the amount or whether you increase or decrease the time that is a modification of the plan so the there and it should be hard deadlines and judge around cited some of the reasons for that if you tell if you tell us that it's not a heart deadline they're going to go past that line and they're going to do what happens here if if you have a situation like the classic case that shows the slippery slope there was someone who made all their payments on time and now you've got a different fact out and in this case where there was a material call one month to month three months four months etc that's and in that same analysis this is coming to bear in this case saying well i still want me completion discharged even though before during and after the code says i have to have those payments might it was published in two thousand and eighteen january i recently shepherdess it in the three years since it was published it has absolutely no support throughout this country it's cited sparingly it's not cited with approval  and if i might just look at h s b c has no quarter no leniency slippery slope argument it tries to distinguish the klaus case where they were behind on their payments at the very tail end of the plan so i'm i struggle to reconcile the argument that there's no quarter no mercy no no slippery slope no ad hoc decisions what unless they missed a payment that was imposed by the chapter thirteen trustee so i don't i don't get the we either either there is no recourse there is no quarter or there is but i think in this case th