possibly alleges that the payment at its members monthly insurance premiums was in exchange for our sponsoring united health as the insurance carrier in violation of connecticut and a rebating rebating statute and i hope to get the defendant's premature and fact based challenges that the payment was instead for intellectual property instead of sponsorship but like to st begin with the great option which this could have spoken about with regard to application of the public option in cases raising new york state claims involving insurance premiums approved by the new york state department of insurance and as noted that new york courts have routinely applied to florida in new york case this is a connecticut mean i don't see how you can argue both that this isn't the subject of a file great doctrine because the rate will remain the same after you've suffered a loss because you don't bargain about how they're going to use the money and then they use the money that they have a right to use in a way that i haven't bargained for are you saying  other part of the harm is that this four point nine percent cut at every insurance monthly payment was going to instead of could go which is into the back of the plan again if it can go anywhere because because to do that with a myth that it's an interest and they insist licensing and sponsorship is the same thing number one of the fact weston whether or not if the money is really being paid for sponsorship and secondly they talked about sponsorship  record but let me let me start with the question whether there are facts in dispute here that matter the plaintiffs are asserting an unprecedented application of the premium rebate statute dismantle this economic relationship in a way that has ever permitted before and the threshold question to determine whether the premium rebate fly at all is whether the payment induces insurance that's the st question whether you ask whether the payment is legitimate whether you inquire whether the intellectual property has been appropriately valued by the royalty that did in an arm's length agreement has agreed and is whether it is unsure whether it induces insurance that's the language of the exchange for consideration is united's agreement with individual insurance here premiums in exchange for medical coverage here of course plaintiff the coverage that he that he wanted but before you even get to the question whether  parties had brought the court's attention but there was an earlier appeal in that case that set forth the allegations of the insurance commissioner there in particular his allegation that the payments to the associations had the effect of reducing their own premium have to offer it through an individual policy and in that event the insurance would be more expensive because united would be unable to aggregate the risks the premiums would be subject to a lower loft ratio minimum and it would have the effect of harming insured and the group policy here really has no difference to the mechanism of insurance purchase all it does is permit pulling a brisk and offering they are arguing that this contract is different from the one that they had possible would be would be very this is the th action in which a challenge to the world has been asserted on some ground i think this is the th theory this court dealt with a different theory in the recent case about ten years ago doesn't say because it doesn't make any difference well st we have to get to whether or not this is a violation of the unfair trade practices act that would be any contract to be a contract but there is something illegal that was happening and  insurers insurers are paying money they think just for coverage but in fact what they're paying for is the rebate and the money instead of going to the two are should be going back into the plan into the plan as a favorable experience expense to stabilize the plan for all of its members in a nutshell what is the relief that you want and what is your standing  seventy percent rule there's nothing that would keep them from taking that money and simply putting it in their pocket or spending it as we often do in connecticut very good prosecco there's a limit to how much there's a case united states versus santo single threat and so you can have threat one threat two if it's in the same ever so here is somebody who got excited in a particular situation and did something it may have been have been consistent in looking at this word single instance it doesn't say a single threat with little or no deliberation so single instance and interpret that as a single episode and i look at temporal proximity how close is all the action together and if you're talking about the same thing and here we submit it's clear that these are the in temporal proximity there within seconds of each other and he's talking about the same thing in fact he's responding to a question or comment about his prior comment so anyway you slice it from our perspective that has to be considered a single episode and there are multiple cases talking about time lapse and one of the cases an hour goes between when the st statement was made when the statement is made so there's no sensible way the say well if you say it twice that suddenly become more than a single instance i can just think if you say you know i'm going to hit you and then no really i mean i'm going to hit you in have in terms of deliberation here obviously judge thompson this interpreted that he was acting as a person under control of the person ranting and raving that's not what it is deliberation is planning or doing something to try to carry out the threat and here in terms of planning we don't have any of the indicia that you end up seeing in the other cases that industry goes from maybe finding the address putting a postage stamp doing that kind of stuff and russell it's walking from alabama to georgia you have some conduct that will support planning and under right there are only at the defendant's course of conduct leading up to and following the time the threat was made is closely tied to the communication of the threat or if we made any effort to go ahead and carry it out here ironically i mean we kind of have the perfect model or hypothetical frankly or zamzam question as far as i'm sorry because it doesn't sound goes to the people's office not me he goes to the people's house he's in court addressing and dealing with the court proceedings that are going to send him to dish no jail time then he never addresses the at all until he is escorted out by the marshals and then he makes the comment for which he is convicted and then within seconds the amplifies that calm and so the notion that there's any evidence of deliberation or planning frankly i know we submit that there is none the government points to two prior statements he made to his mother and phone calls which basically indicated he didn't like his piano go f yourself or the piano and another comment along those lines  submit that the fact that he doesn't like is p o which is probably present in almost any threatening case where you don't like the person those kind of statements are not what deliberation is intended to be under the right right there are st s i'm thinking of sanders of sanders is the th circuit case where the gentleman went ahead and sent racist letters to certain ethnic groups clearly that person probably had all sorts of prior statements  consistent with the right there are some analysis that we're going to find that that's deliberation in terms of remedy i don't want to briefly touch on remedy and the one a frustrating part about this from our perspective is that every additional day that passes is a day that it should be in jail  where you may be inclined that this was incorrect rather than holding it up for the decision that would explain that to the world in the future there would be an immediate with instructions that a he should be released on appropriate conditions  release pending sentencing there should be a resentencing and see a suggestion that well but if a re sentencing comes up with the same sentence and what happens then he gets put back in general that's a risk is answer to that i know i was talking to a prosecutor earlier who works in that district and it was kind enough to go on talking about the logistics of that i expect and i think the government will go and affirm that insofar as he's not yet released you know at at at thirty good morning may preach the court my name is mark silverman i represent the government in this field starting with one particular question that came up at the end of the anticipated bureau of prisons released a thermistor santos's may th two thousand and twenty of counsel indicated there may have been some behavioral problems when i checked with the bureau of prisons yesterday there were three disciplinary tickets issued two for drug offenses in one for an assault so to judge calibrate these point earlier if you were inclined to agree that there was a single impulsive act how that would actually work in practice i think there's actually a risk that were this to go back to judge thompson he made out a plenary sentencing considering all of the circumstances as a defend before him he may think a longer sentence is appropriate now i don't obviously i don't know that but there is a rebel but they're saying that they've met they're willing to take that route it's so short that would be the rest so let me then response would be twenty one to twenty seven seven month range i'm sorry and he make that absolutely absolutely and if the defendant is inclined to take that risk then i should turn to the merits of the sentencing challenge i understand from judge calibrate these representation earlier he tends to think this is a single impulse but i wanted to respond to some he was saying i'm implying and i understood understood your honor counsel suggested that he can think of a better of example of something that would be a single impulse and i wanted to try and meet that challenge so if the probation officer toper had given his position the probation officers position at the violation hearing just as transpired and said we don't think that mr santos is ready to take advantage at this time of substance abuse treatment we think he ought to be remanded if mr santos had at that moment and for the st time ever had a negative interaction and said hey torpor toper i thought you were supposed to have my back i'm coming for you unhappy with the probation officer what evidence is there that he would have done anything until he gets to court and judge  ordered who is famous for being sensitive to drug people he's set up with drug special drug courts to his surprise says no you're going to jail and at that point so it may be that the court decides our situation is close enough to that scenario and that there was some procedural error here i understand that i guess one thing i would say is that you mentioned judge calibrate the surprise but judge arterton had warned mr followed by two additional years of supervised release so maybe he went into the august st proceeding with the hope that it won't turn out that way but he should nation have been water the repetitive act the government yes your honor so the repetitive act really has to do with the meet our maker statement in court as he's being scored out of the courtroom after judge arterton has left the bench he makes his comment along the lines of i'm coming for you to the probation officer he's scored it out of the courtroom down the hallway down another hallway to the elevator the marshals are making efforts to talk with him and then he says you know we've all got to meet our maker whether it's by me or someone else it may be that you decide that's all part of one episode i understand that isn't entirely clear on this issue and if were the court were to remain and i think judge thompson would have an opportunity to revisit his factual finding that the defendant had evidence of planning or some effort to carry out the threat i mean the following day the only thing he ever did about the threat is the call of mother in africa policy i don't think there's any evidence that he tried to execute the threat that he tried to carry it out in terms of planning though and whether the knee jerk reaction i guess what i would say die clearly he's very unhappy with the probation officer and he knows he might be getting the six month sentence when he shows up on august st started to and has already warned him of that that is the best planning in any slower or is that is is there or is it to deal with people who have planned something or is it there are people who have been on happy for some time i understand your question and emotional need jerk reactions when there is no planning ahead of time when there is no attempt to execute a repeat the threat afterwards are the sort of instances that this reduction is meant for in this court decides that the circumstances here are close enough to that that it should find a procedural error and it should   and i guess what i'm proposing to the court is that there's really two things that this thing which are circumstances here from what i would view is a protocol threatening statement that falls under the auspices of this reduction the st is the context santos has his outburst in fact during that period of time as judge thompson found mr santos is still well under control he's making do wants arguments with the judge as he sees that things aren't going his way he starts to get more agitated and the dialogue one he's still talking about the fact that this time he's not high as a kite he's been in custody for seven days you know be able to take advantage of another detox program the way he hasn't been able to on seven previous occasions so he's still making his pitch and he's making it in a way that's not just emotional it's not just impulsive he still making an argument doesn't that just mean that when he exploded he exploded and that's and that's an explosive episode and it lasted possibly two minutes well that was me walking to the the elevator that could be your honor that's certainly one way of looking at it but another way of thinking about it is mr santos has in did somebody who is being logical is arguing is unhappy and so on that is all ultimately i mean you almost made the argument for him by saying he was under control that's galbraith the i guess what i would say is it's always difficult for the government to put on evidence of exactly what's in someone's head but here is difficult for judges absolutely but judge thompson in his role as fact finder looked at the same record and drew a factual finding it may be one that you have drawn yourself if you were serving in that role but this is a clear error standard so if it's a reasonable interpretation of the facts it's not clearly erroneous if someone could rationally find that that's what happened given would be surprised if it's the senate is used by probation offices themselves i understand your point to jacobs and i guess what i let me put it another way that you may know you don't like your torts teacher longer and at that point you explode and say simply yes your honor i understand the point that all of you have made and i think if you disagree which is thompson's factual finding the appropriate remedy would be to decide there was a procedural error and to remand for resentencing obviously i would disagree that mr santo should be released i think there's a protocol in place for how that proceed under statute but you could direct judge thompson to proceed expeditiously with that re sentencing and what going i don't know that there's one that would prohibit you but there would be findings that would have to be made with respect to whether he posed a risk of flight or a danger to the community or others given under the bill reform act given the circumstances here about a threat that officer toper took seriously i would think that a judge would have to make careful findings about the danger he might pose to others now i guess just quickly and i see that i've run over my time already i understand that the court may be open to remaining for resenting if i could just say briefly that the government if there were any questions of the specter the sufficiency challenge or the evidentiary challenge i'm happy to meet them otherwise i'm happy to rest on the papers and would ask this court to affirm the judgment thank you will hear the robot quickly on earth because frankly you've given better hypotheticals than i have a better example than i have so just as i was a clear issue i mean why should we defer new judge thompson's factual finding that th kind of in any way shape or form disputed they're not we know what he said we know you want to delve into really know what he said then i'm not disputing any of the judge's findings with the judge found that he wasn't ranting and raving and that he repeated it and so so that fact pattern exists it's a question of law whether that fits within the guidelines or doesn't fit within the guidelines and trying to continually characterize it characterized as a finding of fact frankly fundamentally disagree on that it's an application and interpretation of a guideline case  passage of time the passage of time in other words the government started with well told or had testified earlier and so there was a passage of time but that's just pure speculation as to what's going on in his mind sentencing argument except that it was a true threat but trying to fill the right there or saw notion of planning into a passage of time between a reason why he would be angry and then doing something would erase any definition of planning and finally because dutch and you started with this in terms of multiple threats the freeman case st circuit talked about a single instance connotes temporal relationship and single purpose or scheme these are both directed or they happen very close together and i think more fundamentally more fairly his nd comment was in response to somebody saying what you just said was dumb and then he responds that i can't that the morning honors may please the court my name is mark seal i'm here on behalf of the appellant defendant in this action which john has have before you is an appeal that really raises five new panel of discord a few weeks ago and so that we are bound to follow what that the sea of that chord is if it reaches the merits what you are arguing today well of your honor's are aware that we have renewed our motion for certification of these questions to the new york court of appeals because in this case the criminal usury statute represents a fundamental public policy in new york state and based on the issues that are raised on this and i was on the earlier panel in the same argument was made yes but the panel the motion filed denied it decisions of some of the appellate division courts in new york that the criminal statute cannot be waived and the reason why it cannot be waived unlike civil usury civil usury is a personal right that stature can be waive by an individual but when a statute is created for the protection and betterment of society especially the criminal usury statue in new york that cannot be waived and i weighed in terms of you can't in a contract waive the statute a lot about in the context of a lawsuit where i mean can you go throughout an entire litigation not raise that the fans and then at the very end rate with the fans but you know that's not what happened here  that's the entire lawsuit but you let the motion for summary judgment be filed they raise the issue you totally ignored it in your response and then later on you tried to raise of waiving it well i don't necessarily agree with that your honor there are a series of cases at the state court level that for instance in lower equities the there was a pleading an answer a motion a summary judgment it wasn't raised at all in that in that case seven years later a new attorney makes an application to vacate the motion for summary judgment and the sole reason is because the defendant at that time seven years later raised the defense of criminal use you're surely not arguing that something is is is wave and it has to be waived for a period of different one it's essentially this that if the district court in making its decision as to whether there was waiver or not was influenced in a determinate of way by its finding that there was no usury defense then we don't know what the district court would have done on waiver if it had had a different view of the issue deals with new york's fundamental public policy and it's based on statute i implore the court to consider certifying the question to new york state court of appeals let the new york court of appeals come down on interpret in their statutes and whether or be raised get to the new york or the appeals or question is is this the case to do it and where is this not this is absolutely the case to do it in because not only do we have that threshold question of whether or not a defendant in a civil action can waive the defense of criminal usury but your honor as you have fifty at least fifty cases pending in both the eastern and southern district almost based on this identical pending before another panel in a couple of weeks yes in fact your honor i i'm on another one that's going to be scheduled as well but and the history is so rich in new york on the criminal us statute long before you gentlemen were born and looking at the at the case below there was no examination of the trans asked action document in this this is develop back to absolution from this court for the procedural errors to address one point that the plane made in their argument what they're saying is that the defense of criminal usury can never ever be weigh in essence what they're arguing is they can come they can a judgment can be entered they can come back five years ten years twenty years later and say usury and void the judgment because reka never really that's an absurd proposition it's it's basically here i believe that she did i think it's effectively said that there is the result waiver and the law of the case and then she said but even if it's not let's go through the analysis and you're wrong anyhow so to answer a question that was asked earlier two opposing counsel grounds she had basically two separate rulings dealing with the current user is that you agree that's an abuse of discretion on her part whether i believe it's an abuse of discretion because why st motion deciding the motion on the merits and your predecessor never raised the argument then apparently you come into the case and you raise the argument why is it not within her discretion to say it's been one and all that time working on that opinion and now you're coming back for a nd bite at the apple and i have the most respect for judge propriety i feel she is a well reasoned judgment of her decisions however not the hartley versus eagle insurance case from the new york court of appeals she was required to undergo a specific robust analysis as to every term within the four corners of the document to determine whether or not this passes muster whether or not this document is legal she said that there was a legal contract my client never raised it but she never did the analysis so when she did her alternate holding which is reviewable by this court in the nd summary judgment motion she she basically when through the elements only so far as to cite other cases that never conducted this analysis so we would take the position one of two things are either you need to re manned so we have an evidentiary hearing so we can look at the details of the contract to make sure that this contract which charges more than twenty five percent anyway you dice of the slice and specifically says it's unconditionally and absolutely repayable making it alone or certified his questions the new york court of appeals for guidance and then we could come back and you have fifty cases below you that will law now the good thing about usury is usury is determined from the four corners of the document and the brave or the waiver question in this context that is whether it's way in the circumstance of the litigation isn't that a federal question a procedural question well i believe that on the c p l are there's a statute that says you can raise an affirmative defense any kind of you're under federal court isn't that isn't it the waiver question whether it is waive as an affirmative defen my decided differently if it for the merits of the usury law were different from what it was you know there are situations in which you send it back to a district court to say that you want it but it is a federal question that isn't just a question i meant in the context where you still have new york's public policy to consider to it or so the criminal usury statute versus the federal procedural law that says you waive the affirmative defense it's student three officers surrounded him taking him to an enclosed area with metro card a fee i mean if i waved a card is it and i'm not a stupid to have i waved my student metro card know that he was in the student however your honor all they had was a hunch that he looked ugly well but they did have a reasonable suspicion come on a twenty four year old looking person using a student card is that your argument or is your argument about when they when they stopped them what they did and then it's both your honor so it's true that metro card can be valid up to people who are twenty two years old the officers here pointed to know that somebody is not is watching that's not what they say around or they say the only suspicious thing with swiping the metro card they say you looked around they definitely don't say they found the special they say the opposite and they pointed to and they didn't say importantly anything objective about what about this person made him look a little older than a typical student let's get to the point of that is the principal argument about whether under the circumstances they had the right to check for the gun in the past and whether if they didn't whether this was  once mr silver's had been stopped by three officers handcuffed and the backpack was removed the officers specifically testified they had the one officer that offer testimony on the point that they had he had no reason to think mr stover's a dangerous no concern they also had no reason to think there was any evidence in the back and the supreme court has counseled that the purpose of the search the scope of the search must be limited to a legitimate purpose there's no legitimate purpose here and the backpack is also outside of the area that would be part of a legitimate copy of the search can  status or a little limited as such class are did not allow counsel to explore the transit recidivist question but even if you he was a transit recidivist once it's taken to the precinct the nd officer testifies that generally people are given desk appearance to appearance ticket in this instance and allowed to return home rather than proceed with the formal arrest process the government didn't introduce any facts about any inventory process that might apply in that circumstance and it's not our burden it is the government's burden to inevitability which means there you're saying this is like with greece's case that we should send it back to see if there is to have the government come in whether there is a practice of looking into backpacks or things going into dorie because if there were such a practice and that practice was n officially proper then they would have found the gun but it's up to them to show that there is such a practice is that your argument is up to them but they don't get a nd chance to do that now if they didn't  work across town the court found that there were established and standardize procedures was your basis for the following no your honor not with respect to seamen challenged by defense counsel at the hearing that is whether there were back to have the government show whether there was such a practice or procedure but we did that we that we said as in this case you are arguing and i apologize perhaps i can get back to you under but all with respect to that question but here we have a situation where the government did present what they believe to be sufficient i assume it's not like they totally forgot about the issue where it wasn't pointed out to them that the inevitability of the search or the inventory would be an issue with respect to the suppression hearing moving back in in the chronology where with the backpack when he was being it off and so he could not access it the officer also said it was near his right leg there's no record about the exact distance between the backpack and mr sobered but here there's also the officers had no reason to think that mr sober to prevent presented any type of danger at all and that is different than all of the cases cited by the government and by lou hernandez should she hear those cases all involve situations where officers are best to getting serious felonies and have reason to believe the person is armed and dangerous so there's no question about that part of the purpose of the search and then the court looks to is the place where the person place where to search post and that a person could have actually gotten to it here there's no indication that it in it's place away from him so he cannot get into it  good morning you're on the court aaron reed for the government representing the government at the suppression hearing in a trial in this case beginning with the start incident arrests question your honor judge glasser the correct to find that the gun was recovered in this case case is very similar here like this case there was a bag that was next to the defendant's leg and that is what the record established in this case the testimony was clear from detective past twenty eight he said the bag was next to the ruling in which help that not every detail of a search procedure has to be put in the record in order for the court to find that there was a standard policy the policy doesn't have to be in writing in this case  here one additional fact is that as judge glasser took notice of there is an n y p d policy in the patrol guide and it's appropriate for the court to take that into account given that that was put into evidence one year before to find that there's a standard policy it doesn't the policy doesn't writing as i mentioned but it also doesn't have to be comprehensive it doesn't have to listen every officer that does the search who makes the decision what parts of a car search ith respect to any concern of danger the officers testimony was specifically that he had no concern danger to this isn't even about is the officers concerned of danger reasonable the officer had n and that was reasonable under the circumstances here and that's why different from the cases where both searches and two arrests have been allowed i'm not allowed but danger is taken into account the cases that the government mentions about where the scope or the purpose of the search is that go that are about searches of the person not the searches of property that are removed from the person and arizona began to make clear and that the scope must m be related to the purpose with respect to the double discovery and inventory in recess there was no testimony about any sort of policy and procedure with respect to the closed container here the government put in what they thought was sufficient that the officer said there was a protocol and there was a procedure so while the court of course backpack were voucher for safekeeping entire contents were inventoried and voucher according to n y t and my p d procedures it's our protocol that's what license that's sufficient that's what they're stuck to their aside for the desk appearance ticket this isn't it up and it's not like lopez where there was expensive testimony about what the procedures were the issue was down in the nitty gritty of did this procedure actually followed the the precise something you waited more than the time in your very argument about why this is a federal question is one that would shoot just that you would have been able to do this in plenty of time so why do we get into anything else but just with you didn't go into your honor if this is decided as not being removable at this time then the time to remove hasn't even begun to  so that that that is one point but also in the complaint itself it's not clear that they're talking about his attempts to market medicare advantage plans it could be talking about attempts to  medigap plans or other health insurance plans if it's it doesn't have unequivocal facts that but are there enough facts that are the ones that you're saying make this a federal issue that were in the complaint so if that is so then why isn't that enough for you to look and say this is something that shouldn't be here and it's because you're honored there's an exception to the to the well to complete will when it comes to federal law students removal statutes and the subjective information of the defendant in this case the respondent is not taken into consideration he removed based on information by his own investigation by his own knowledge of the facts not the complaint itself with respect to that issue the paintings that you are planning rule doesn't mean that states get to decide the plain meaning of federal statutes is a federal statute and  are we're going to decide what state court means why should it include this kind of stain agency because eventually this this i think it should include the state agency i know you think so but if the statu attack with this bill language of the statute you got to give them something the only thing you give us is a very old case that says that some things that are courts are not could be passed to deal with that and so you can you can remove things from state agencies when some issues of federal something i'm not even sure that there are any issues of federal investigation whether this isn't just a question of state licensure because that's the nd question you say that there are and that's why i have problems with timing because you're saying that there are based on how you read this but but but if it is such a terrible thing is that you can be passed they haven't passed but until then we run the risk of there being that the new commissioners overseeing a federal something of this nature and i think that if you really consider the policies and and what you define as a civil action as as in any proceeding to the extent that  on timely it's it's in in my view it's it's it's absolutely obvious that this was an untimely attempt to remove an agency civil action the federal  court mr burns doesn't dispute that he was over the thirty day window he instead he claims that because removal was based on the federal officer removal statute and the commissioner's pleading did not provide or alert him to the lobster jurisdiction and that that the removal clock was never triggered however one ok so is that a basis for a mobile well it certainly is and look at look at paragraph forty seven dollars of that page involved the commissioner's claims necessarily raise a federal issue to wit preemption under federal law the one overriding federal issue that predominates on the basis of each count of the complaint you're saying that th perspective certainly the federal preemption issue was not bona fide because there is an exception for state license our point of the timeliness did you can you tell right away that there is federal jurisdiction or does it take you some time to intelligently ascertain it and if it takes you some time does not give them some additional time on the thirty day clock  it doesn't take any time again going to paragraph forty seven dollars your argument your argument is that no one looking at this could intelligently hastert claim that this federal officer jurisdiction and your honor mr wade claims that it's obvious to look look what he says a paragraph forty seven on the face of each count of the complaint says that there's there's federal preemption so if if mr wade is saying that this th ere's a an obvious that will preemption issue here then then certainly he can't stand here and deny it you're in the difficult position of saying that every one of these arguments is a bad argument that if it were a good argument it would be obvious on its face that's right but looking at the facially looking at the complaint when we see that that there's a medicare related this involves medicare related insurance arguing that that the court should have considered sort of federal interest in making that plain meaning real analysis but we don't do that we just simply look at whether or not the word used by the legislature is clear and on the big us and whether or not the term is used within the statutory scheme in a cook coherent consistent manner and that is we don't look at any interests we don't look at any interest unless this court were to choose the functional approach  water act the court specifically rejected the functional approach and volkswagen the puerto rico which is the st circuit decision which which speaks out l this functional approach this court specifically rejected the functional approach can strong the term state court and that statute other than that subject your guide i believe i've addressed the process of law due process requires notice and an opportunity to be heard in addition to the constitutional requirements of due process section one trial i'm sorry such an th trial of the bankruptcy co specifically require notice and a hearing or a motion by a party in interest to convert or dismiss a chapter eleven case it has been established in numerous instances that the bankruptcy court judge was very specific and it made no reference to the conversion issue being on the court calendar and in fact the jan th two thousand seven hundred transcript it's in the record at page notice on the disclosure statements are going to stay released and the status on the frank claim objection there's no reference at all to a motion to confirm or dismiss the chapter eleven however case was converted within forty eight hours of the conversion order being entered the chapter seven trustee possession of approximately seven hundred thousand dollars of cash that was in my debtor in possession and twelve also mandates that notwithstanding any other provision of this section a case may not be converted to the case under another chapter of the title unless the debtor may be a debtor under such papers they do not point to anything in the record indicating that there was notice about this hearing being on a motion to convert or did they do not challenge the mandates of one thousand one hundred and twelve and they do not point to any place in the record where the court who had an independent duty to do an analysis on conversion or dismissed thought it simply just did not happen you're honest thank you under one of five a as a man one hundred and eighty six it says at the nd sentence no provision of this title as in the entire title eleven bankruptcy code providing for the raising of an issue by a party in the interest shall be construed  court from sue a sponsor taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules or to prevent an abuse of process or was a request for conversion  any event i believe at least in three submissions made by mr carroll the former spouse he requested that relieve us trustee supported his argument in order to show cause but even absent that the by amendment that one party interested to make the motion that was corrected by one a five day amendment to in fact an oral motion would have been adequate even under that case and three i think that case both to that conversion can be without a hearing and as authority for the proposition that hearing is not required but that's not what happened here here the court did not use discretion in converting the case as the court observed an extensive amount of time in past eighteen months and the state was in worse condition than it was before now one of the questions raised by this once is was there notice that there was going to be hearing let's start with there are four separate orders that's during the life of the case that express times it was stated on the record at least two or more hearings as well now what happened here is that the order show cause hearing was initially set down a sound that was announced and then the debtor upon reflection the elected to withdraw from the settlement hearing conversion was not dismissed it was not this continued a matter of record it was continued and generous counsel her rd at the time would have notice of that fact so the notice issue is a red herring here was very clear but the consequences would be about a failure to comply and here every operating report showed that this estate opt it rated as a deficiency that there was insufficient funds that mortgages had not been paid for it least in one it's the seventy seven months including pre and post petitions for the estate was being diminished as the equity eroded and also what's happened here is that there was no delivery to confirm a plan here there was a deadline of less than thirty days left in which to confirm a plan you have to confirm the disclosure statement before you can send out the plan to the creditors and the judge trusts set an immutable deadline as he put it for less than thirty days away it was an impossibility and finally what the court should note is one on the trusted in a place two and half years he sold legal liquid assets attack claims were i'm sorry proceedings you cannot unwind what he's done by hypothetically reconverted the case because you can't undo a sale you own the only are there certain actions undertaken that will provide for that and finally mrs lynch this  and as far as the eighteen months into the case in worse condition that's simply not true either the case was massive surplus millions of dollars it was only to about two hundred and twenty five million two hundred and fifty thousand dollars of unsecured creditors and there was millions of dollars in back within the state of the state was not by any chance being diminished regarding the four previous orders about a confirmation date those are not applicable because where the court did set th calendar dotted entry does not put all of the unsecured creditors on notice and i absolutely did not have noticed and i was not aware that that date was going to turn into a surprise conversion  one hundred percent plan can be confirmed all the research that i did i haven't found any instance where one hundred percent plan could not be confirmed in an individual chapter eleven every creditor was getting a zero dollars ten cents on the dollar lump sum payment that is a wild success by all measure especially with all of the difficulties i had to deal with not being able to operate as a debtor in possession up to ten months into the case burdened with excessive instance there's never been any other case that i have been engaged in any misconduct or that i have been trying to abuse the process contrary unfortunately my ex husband