months when judge the judge that can firm this case would confirm cases that were in seventy two months from confirmation so for some reason it wasn't an issue it wasn't being enforced  historically and then we had new judges who did come in and say this isn't right wish this to complete within sixty months and so it was a flood of motions to dismiss  a lot of cases had gone beyond sixty months and most of them were tax cases to just continue to make payments so it's partly the last month there was less than one hundred dollars chapter thirteen filed and what also happened is i went from twenty two dollars employees to five employees over this to year period the chapter seven trustees i represented retired  i never laid a anybody off or fired anybody or ask anybody to leave but i went from twenty two employees to five employees so the silliness of what was going on at this time was i was having three or four times as many the context of what you just said you know it's it's unfortunate that it got to this point under all these circumstances but nonetheless you know the case got dismissed yes and you need to convince us that the district court error or abused its discretion in dismissing the case well it's the bankruptcy judge you just missed the case yeah and i think the the abuse of discretion is we're focusing on the trustee did her motion to dismiss i filed the late opposition the reason this case was going over the sixteen months is the franchise tax board had filed a priority claim it and that was going to cause this case to go on further you know everybody had known about the franchise tax board claim right quite a while right but the point it was a true rd two thousand and thirteen file case and we have a hearing in two thousand and eighteen and one of the glaring things about the way this was handled was nobody ever gets to the merits of my claim objection for the franchise tax board i just had a hearing last week exact same problem judge upheld my objection franchise tax board claim is unsecured and it's not priority in this case nobody ever mentions that there's a two thousand and thirteen chapter thirteen this debtor filed for tax returns for two thousand and five and six dollars on time why wouldn't they be discharged why wouldn't they be an unsecured debt but we never got to consider the merits of my claim objection because it's like some kind of artificial intelligence bought we just looked at the docket said nothing's going on here is  late opposition to the dismissal i'm going to dismiss this case i'm going to take your claim objection off calendar well you know that's not me getting to the merits of the campus you still haven't addressed why the district court abused her and her discretion dismissing you she denied me due process to have a house hearing how did she deny you due process she took the claim action off calendar and she also dismissed the case when there was a objection  the claim was on file for a long time but would sometimes telling us historically the judge that confirmed this case we would have had to claim objection hearing  and did other issue here is i think we put this in the papers is during the five years of this chapter thirteen my client became a nurse she showed up at the hearing she and i asked the judges clerk to put this back on calendar if she just given his thirty days mike my client had the money to pay the claim if it was priority so where propriety of dismissing this after five years without a hearing and one thing i want to emphasize in a chapter thirteen practice a lot of things are going on that are not on the docket so i had to hearings last week then it of decision was to dismiss both cases i had an explanation and everything else was fine cases were being from firm one was i said you know don judge nothing on the docket but i filed six years of tax returns state and federal not only did i get those filed but the taxing and if these have amended their proofs a claim and  discretion he said a minute ago tonight or your client due process because we didn't have a hearing on i didn't have your ok so that's ok you didn't have a hearing that's another reason you understand this emotion dismissed by the trustee the mechanical thing that was being implemented because all these cases were over sixty miles i late filed a opposition to that motion to dismiss but i thought the days later the judge dismissed  ask let me look at it i thought you argued that wally what the district what the bankruptcy court did was to impose the sanction of dismissal yes opposition to the dismissal i thought the case law on this circuit was that we decide things on the merit if i file an opposition late sanction me continue it have counsel pay haven't ruled on and which you should rule on before you dismiss this case you can say that i've said it think that's obvious from the docket i had the kids it was  the motion which was scheduled for march th two thousand and eighteen did you bring up the issue in your papers that you had an unruly objection to the franchise hacks claim yes  calendar makes orders and and things disappear from the calendar there's never a hearing so that there was no hearing i missed on which march th a prior to march th saying you haven't ruled on my fifty be objection yet yes or no i filed an objection to the dismissal and requested a good morning your honor it's my name's jane and i'm here on behalf of devon don burke the chapter thirteen trustee in san jose your honour's this debtor failed to complete her plan within the five year term limit that both the plan provided and the statler sure she was or she was required to make a certain number of a payments of a certain amount each month correct that's one thing th department right and she does that yes she did that all right and it's unclear to me why she didn't know why she was an informant told right right at the bitter end that she had the the franchise tax board was claiming a secured priority well your honor she didn't know or should have knew about it but she didn't know that it was secured it wasn't secured your honor it was unsecured priority which is a separate classification from secured but it makes no difference because security and secure priority both need to be paid at one hundred percent so it was in the plan and that's in the plan but the plan just provides how much claims receive in this district and in many districts what happens is the plans get confirmed before the claims are date and the actual amount that has to be paid through the plan is determined after their claims are day passes because that's when we know what  and what claims are allowed so the f t be timely filed it's proof of claim it was after confirmation but it was timely filed and debtors know this y honor they have to watch or at least their counsel knows that they have to watch what claims they are actually being filed because those claims made change what they need to pay through their plan to perform it in that the seventy five dollars a month isn't going to be enough to satisfy all the debts that need to be paid does the trustee specifically send a letter saying those seventy five dollars is not going to be enough i don't think any letter like that went out in this case but what the trustee does and we have a motion to supplement the record on appeal with an example of one of these letters is she sends an a letter every october while the case is pending that specifically sets forth the claims that need to be paid how much has been paid during the course of that year and what the remaining balance is to be paid that letter goes every october st to every chapter thirteen debtor and every debtors counsel but does it go on to say the seventy five dollars a month isn't going to make it would be up to her to decide what do i need to do to make this plan complete and sixteen months that could be modifying the plan to mate raise her plan payments so that she can pay it all in sixteen months it could be filing an objection to claim so that the claim that she has a problem with and doesn't want you to have so when you get to the end and she's in she's obviously can't make the full payment the seventy five dollars a month isn't going to satisfy all needs to be paid why isn't it possible to work out something with her so that you know look we'll extend the plan period the period for thirty days or sixty days and during that time he got to pay it so why why does the case have to be dismissed after she bit went through all this period of time going seventy five dollars a month and then that gets dismissed and now all her indebtedness is subject to litigation in the state courts enumerated bases of cause is a material do fall under the term of a confirmed plan and this debtor was a material default of her confirmed plan the trustee has let you know intimated that they don't care if you said they got to be paid and we'd move to dismiss i'm sorry your honor i didn't mean to intimate because i haven't had a chance i hadn't finished my explanation and i apologize the trustee must dismiss under thirteen thousand and seventy six it says the court may dismiss it's up to the court to decide whether the court the bankruptcy court believes their circumstances to let a case go on for a short period of time to try and fix the problem the court is never required to do that it's up to them to make the decision whether the circumstances of the specific case warrant extra time i do want to correct that right so let me just let me let's finish that out so is judge be a tried to confirm there was no objection by o as i understand it to the motion to dismiss until after the sixty month period correct so the motion the sixty month period expired in february of tiny writing we waited a month filed our motion to dismiss the client plan had not completed properly we use what the notice an opportunity for hearing which gives any of the creditors or the debtor twenty one dollars days to file opposition to our motion to dismiss none was filed by anyone wanted by any right including the debtor right that's where the march th deadline was because no one filed an opposition we had a right to request that our motion the trustees motion to dismiss be granted by default we did that november and april nd in november of two thousand and seventeen you sent out a notice to the debtor absolute that the full and that was in two thousand and seventeen correct that the full amount due to complete the plan was the fifteen thousand nine hundred and thirty five dollars correct so she had notice then and there was nothing found absolutely your honor i mean completely that she had to pay that to satisfy the plan absolutely or she needed to do something else to fix correct and she had three months to do that and she did nothing at that point she weighed it was a full month before the objection to claim was filed it was done by notice an opportunity procedure also was not immediately set for hearing which could have done and that f t b opposed it then which put an obligation on debtors counsel to cite it for an actual hearing not now no notice of hearing was even filed in tow march nd after the sixteen months like when the judge vacated the hearing and then subsequently dismissed the case the record was that there was an objection to the claim on file it was fairly cursory it just said the f t p hasn't provided a basis for priority the f t b had filed a substitute brief in response the time allotted for the debtor to reply to that had expired without the debtor replying to the f t p s arguments meanwhile the trustee had filed as she should have a motion to dismiss judge dismissed the case the bitter had filed the late response by the time the judge entered her order yes she was  in the opposition have been filed and the judge had declined to consider it because it was late file and which was her which she was allowed to do under the local rules that said if you don't file a timely opposition relief can be entered by default so i do i see i'm out of time if i could just correct one factual issue that came up in oral argument if you'll allow me represented that in san jose plans  used to always be confirmed at sixty six and seventy two months and he made that comment and his reply brief as well plans are never confirmed over sixty at sixty six or seventy two months plans don't get confirmed unless they comply with the sixty month term limit it's only when things subsequently happen as it did in this case that editors need to be watching for the plans may go over the sixty month mark if something isn't done to bring them back within the sixty months this studder had four and a half years to fix the problem and didn't as a result her plan went into material default and whether a different judge may have reached a different result isn't the issue in this case the question is whether this judge abused her discretion in this case and i don't think there's a record showing that she did she had every right to dismiss this case based on thousand and seventeen to the franchise tax board they filed in opposition i set it for hearing march nd the trustee didn't notice an opportunity just missal motion on march th ok i blew that i've filed my opposition late but as i said in the interest of justice and fairness there's a lot of things that happen particularly in chapter thirteen and there's a lot of things that aren't on the