very very careful about that because most people say they don't have fifteen minutes and thirty usually proceed to take fifteen minutes so it's a promise you know almost never kept in this court which you've made proceed i'd say have about fifty fifty on  place and it still hasn't been filed in the right place there's been no request for an extension of time to file it based on the close notice requesting special briefing i'm going to jump straight to the hammer issue which i believe is what the court's most interested in and quite frankly i don't believe the hammer issue is really in play at all my reading of haim are is that when a court court does not have jurisdiction although i don't know why it would be different for any other court when it doesn't have jurisdiction that's subject matter jurisdiction can't be waived or forfeited you know i learned that in civil procedure in law school that a court can enter an order over a matter doesn't have subject matter station over i believe that's all hammer says and then it discusses the ways of conferring jurisdiction which is either through congress or which is only through congress but it also uses the term mandatory claim processing rule and i don't want to lose sight of that that the the bankruptcy season the federal rules of bankruptcy procedure have been issued in following the dates and the timelines within those rules are mandatory whether or not they confer jurisdiction doesn't allow for dismissal on other grounds if those rights  waived the what hammer again going back to hammer so i don't see it as an issue because i don't think we're raising the issue of whether the a order we are raising the issue of to me it would be incumbent on appellants to raise the issue of whether they can file a late notice of appeal and again as set forth in our papers they have not filed a notice of the they have not properly filed a notice of appeal with the bankruptcy court as required by believe it's a thousand one they have not filed a motion to extend time as in order to file an appeal the closest thing they've done is throw some facts relevant to our motion to dismiss as reasons flash excuses why it wasn't finally timely filed it does not the appellant has not raised the issue or is not moved to extend time to appeal has not timely filed a notice of appeal and only opposes the motion using the word exclusion excusable neglect but doesn't cite any appellate authority saying that appellate court the appellant raises excusable neglect as a reason to timely file an appeal again as we sit here today there has been no mandatory claims processing rules we've obviously raised them we're here on a motion to dismiss if we were if this was oral argument on the substance of the case we couldn't say well oh by the way this panel doesn't have jurisdiction i get that hammer tells us that's a waiver because we needed to assert the protection of these rules but we've done that there's no reason they shouldn't apply in candidly with all that in mind  become misused and they weren't talking about jurisdiction they were talking about whether a statute authorized certain conduct and used the word well you don't have jurisdiction what they were j c clee saying was well that statute didn't say you could do that but that's not jurisdictional here or you might get as i understand it today is that even if it's a claim processing rule it should be dismissed as out what yours that's your basic argument yes but i would emphasize the supreme court's language  appeal so so just so i've got it right trying to follow up on judge kurtz this question if the supreme court tells us in hammer that they're sort of two sources for these deadlines one is statutory congress has  this thing in this way at this time that's jurisdictional that's not what you're arguing here correct ok you're arguing that the mandatory claims processing process simply wasn't here to hear and thereby we should dismiss based on that well ye but it's a more particular argument than that going back to hammer and that it and i don't know if it's him or him but it's eight thousand one the same thing you have to file within the right time and within the right place and that mandatory claim processing rule also says and misplaced in my notes but the bankruptcy appellate panel or district court may  i'm paraphrasing but grant due consideration to any circumstances except the timely filing of an appeal so that is our argument is is more or less hammer doesn't apply there's no it's really that we don't have to get to it your point your point is that you mean you've made a timely objection it's not waived you don't have to get the second level now is this just a force i guess i would say same yes that does put it better than i would have put it that it we don't get to it it's a different side of the same coin and the court has the court has jurisdiction to dismiss the appeals what i'm saying and the rule dictate that the court or the panel should dismiss the appeal the hammer corps would say if we went all the way through we could still raise the jurisdictional argument and again i'll use the term subject matter jurisdiction  but we could still raise the are human at any point even after judgments and i'm extrapolating a little bit from hammer but i think that's a very fair reading of it and similarly irrelevant reading of it because we've please the court my name is sandra wyatt i represent the appellant you vonnie wilkens one thing i want to point out your honour's is that counsel mention about the wrong place that was never mentioned in the brief that they filed the first time i'm hearing about that and i believe that's really not an issue before the court my understanding of the hammer case is that the supreme court is trying to indicate that if it's jurisdictional then there is no discretion on the part of the court to extend i'm limits when it's a mandatory claim processing rule which is a court made rule then it becomes a case by case evaluation and the fact that you know they try to distinguish chamber and say it's not a pleasurable however looking at  these brief they want this court to follow a draconian procedure basically saying it doesn't matter what happened essentially if it's not within that time frame therefore must be dismissed and i think that one thing about the courts is that there is equitable powers that the courts have and that there may be times there may be reasons that the court might consider what they call excusable would have to be a claim processing rule as opposed to a jurisdictional rule in order for us to decide that it could be waived or forfeited that right and i'd like to point out that pelley in their brief admit to that that it's not jurisdiction for the claim processing rule there would there's no we quest here for they acted timely solution really no issue on the table as to whether it was way before that it correct that's true that's not the issue  case however it still brings us to the point where even given that they've raised objection the court does have the right to decide on equitable grounds whether to allow the bill to proceed or not court does have jurisdiction to decide whether to allow that to proceed or not and of course the courthouse the jurisdiction to decide whether as jurisdiction so obviously as a limit or a matter the court must determine that and then if they do then they can get to the second level valuation of whether the grounds that were cited in my papers were sufficient to allow the appeal to p again your honor so i think i can make it no problem for a couple issues number one yes i may have misspoken about the appeal being filed in the wrong place  my point more broadly was or to be more precise if you are going to file a late filed appeal you need to seek relief from the bankruptcy court on one of the grounds court to extend time to file the appeal again the four factors that go into that since this wasn't really briefed i know there is a pellet is kind of skipping a step here is we don't it's not we move to dismiss and then they say exclude excusable neglect once they've missed the deadline it's incumbent on the appellant to file the motion to extend that deadline and you know hammer doesn't speak to that but again it uses the word mandatory you know this is kind of a basic we have rules for a reason and it what point does excusable neglect just become neglect obviously a health issue is a substantial deal and i'm sympathetic to it and email it to you know i don't know when there's a specific mandate from the appellate manual that it is appellant's or all parties duty to monitor the docket i don't know that you know email system being down is excusable and whether or not it is using judge breakers language i don't believe that's a question we get to we're still at the procedural point was the appeal properly file and it wasn't it wasn't timely file there was no and still hasn't been any motion to enlarge the period within which to file an appeal now top of my head because we're not getting there what we have is a motion to dismiss and in response to a dismissal the draco nian result and quite frankly it's not i'm not going to go so far as to say  ding up the administration of the state's draco nian result but i will say it has consequences and that's something that the court should consider if nothing else the bankruptcy court should have the opportunity the bankruptcy court should sit have the opportunity if nothing else the bankruptcy court should have the opportunity desired fellate file the peel to be filed and then it can be properly briefed if necessary and then if they to file an appeal of whether it assuming the bankruptcy court finds that you have your proof your argument is that if they want to extend the time for appeal that they have to ask the bankruptcy court for that permission i guess i guess what i would say is theoretically you would have the authority but i don't see how we could have waived it by filing a motion to dismiss within days of the field being so one i'd not sure that jurisdiction issue but i would also again let's call that a mandatory claims processing issue there's a reason the rules of bankruptcy procedure say this needs to be fi excuse me filed in the bankruptcy court first and that didn't happen and obviously the panel is far more familiar with running a bankruptcy court an appellate process than i will ever be but there is a reason for those rules or mandatory claim processing rules as the supreme court called them and with that it a certain point even if we're the bankruptcy courts are courts of equity they can't throw up their hands and say well all bets are off there's a rule somewhere which and some case law somewhere which kind of applies and we've ignored the whole procedure you know we didn't file the appeal timely we never filed a notice of time in large time to file an appeal have been met and all those are issues that one we have the right to address to in protecting for lack of better words on orders the bankruptcy court said have the right to thank you taking that tack as opposed to the tax would say well the first question before the court is whether there's jurisdiction at all is is a if this is a jurisdictional statute and rule that's the end of the discussion we don't the way i read him or and you happily look at it again but my understanding is simply intellectual honesty dictates i'd not try and put that square peg in a round hole round it anyway but i think i think one of the points is whether you're arguing that or not we have to figure out how we have to decide that i even if you theoretically we have that argument we have a responsibility to have you answer that question i disagree and i appreciate that but i mean i guess but i think my i would like i mean if your argument is it doesn't matter that's just dead wrong and matters a lot if your argument is i'm not arguing you seem to be arguing it's not your stick which is why i don't know what i would i would argue when i when i'm arguing is that with the mandatory clear under the mandatory claims process you scenario it doesn't matter and i don't mean to me to be respectful of judge lafferty's point that when a court has jurisdiction and orders certainly important you know our the whole court system doesn't work without it i i understand that but i also understand with one the use of resources available when our mandatory claims process in our human in these facts is what it is i don't want to belabor a point which is truthfully truthfully where i am just just as strong that's my point i don't exactly unless i have missed something and i need to be candid with the court i'm as you may see from the breeze and just certain extent pitch it pinch hitting because of a last minute conflict of counsel i apologize for you know one the the not being aware of the six circuit case but it seems to me that's a two minute law clerk exercise who issued f r b or the eight thousand series was it congress or was it the court and if it was the court then i believe haber satisfied if this panel finds haber's not satisfied client certainly not going to appeal that decision we believe it's appropriate you know but that's that's my kind of summary of where we are and i think my if he says i've read everything my duty of the candor to the court won't let me come up here and say this court doesn't have jurisdiction that's just the way i read it i do ask that the court consider the written briefs more than my statements and was there something i could you know with that in mind i'm happy to answer any other questions but