all right so go ahead and state your name again i'm just a little corner appeared for capital options appellant in this case fifty three which is probably the easiest one to sort out of what we have today this was a dismissal without prejudice of the chapter eleven plan because the court found it was not feasible the feasibility of course the plan was based on collecting the money that is involved in the other two cases if we can't collect from them because the limitations has run out then there's there's no way a plan would work we had suggested to the court that so if you lose on the first two cases then this isn't a firm that's right but all right so if you lose on the g two part of it but you don't lose on the misconduct part what what then what happens well this case could be reinstated because capital options does have creditors schedule creditors it has to pay that said you have to be but do we does it have to be  nelson dismissed it without prejudice keeping in mind that once we figure out the appellate level what's to happen it could be reinstated in other words our plan first of all there was no objections to the plan it was people that money to capital options and originally judge nelson said well you really don't have standing to object but the fact is all of the unsecured creditors there was there was no balance at voted against the it is going to be a liquidation plan if you will that it's going to be collecting money from these various sources and paying creditors so what i would do if we were fortunate to get a reversal here is asked us nielsen to reinstate the chapter eleven  plan and get that moving to both your state was approved before you get to what you'd like to have is do we have a response an independent responsibility to find our jurisdiction yes and i don't see any jurisdiction here that the order simply  that the court was clear on who's holding open for you form the magic and who's going to throw it out but because the it's not final clearly not final said to be not final then we have no subject matter jurisdiction we can't help you out how do you get around how we file the appeal to make sure that we didn't if if we did prevail on the other cases they didn't come back and say well you didn't appeal on the plan this mess well i think so here i live i have a feeling the always preserve that for you it's he's saying if you go up and find your stakes and i'm holding this open to deal with that the right now i'm not going to do it so i don't i just don't see the subject matter jurisdiction for us to decide that issue i can see the other if if we did preserve the other matters on appeal but then we could not revive invigorated if you will are chapter eleven plan and that's the basis it's our contention on appeal that it could have been confirmed we still have to work our way through the system to get the g two money back where it belongs the capital option sands but the plan could be fair one thing i should point out and ministry of claims have to be paid on the effective date unless there's an agreement t that's basically our argument this is do we have an attorney issue we do not we never got to the issue of administrative attorney's fees your honor  if the panel has no questions i'll just reserve the balance of my time ok thank you thank you thank you denied confirmation of a chapter eleven plan on three independent eleven twenty nine eleven u s eleven twenty nine grounds under the bankruptcy code he denied it because the plan was not feasible he did determine it was not proposed in good faith as required by law and twenty nine eighty three and he determined that it did not satisfy eleven twenty nine nine with respect to the ability to pay all administrative claims on the effective date without agreement of the claim holders the only issue appealed by capital options was the determination of feasibility apple options did not preserve as an issue on appeal whether or not he had the plan satisfied eleven twenty nine a nine or whether it was if the plan was feasible this pause again this closure is without prejudice and if something can be accomplished at the appellate level i'll consider the possibility of reopening the chapter eleven case now how's that become a final order inconsistent with the words i just read to you from his mouth nothing you're ok and but i'm trying to put that in a procedural framework of you have an order that's a dismissal without prejudice you know the rule fifty nine sixty time periods will have long since run how do you reinstate a bankruptcy case that has you in problem for judge nelson he's the one that's but as far as the record we have now you could conclude that it i for dismissal or to excuse me denial of planned confirmation and you know in part of that the problem is more perhaps a functional but when a banksy case is dismissed there are a lot of you are no longer supervised by the court you no longer filing monthly operate there's a lot of procedur not i appreciate the technical legal argument judge was as it is jurisdictional and it's hardly technical i guess i understand we have i'm just a poor bankruptcy lawyer your honor and i've been trying to imagine how this will work and in my world we don't have jurisdiction to take the case then what would happen let me confer with what would happen is that if they tried to reopen it below then you would come in and say well there's three independent grounds you know each of those court determines that lack subject matter jurisdiction and essentially vacates the appeal and mr horner tries to reinstate or cap options tries to reinstate we have not waived any argument that it would be inappropriate to do so and with that i think i will please the court or statement on behalf of g two and goldsmith i don't know that i have very much to add to what mr jerome stated i would state that in in defense of all the counsel who are operating under the assumption that there is appellate jurisdiction  what there's two things first the planned confirmation order the denial of plant confirmation as a final order that you know that deny confirmation and that's over the question about the dismiss you sort of have something here that's not been talked about which is the interplay between section three forty nine and section three fifty of the bankruptcy code section three forty nine of the bankruptcy code when a case is dismissed unless the court says something about you know what what the dismissal does essentially puts the parties back in status quo ante under section three forty nine b unless the court for cause otherwise orders otherwise a dismissal of the case other than under section seven forty two of this title which that that was not a political reinstates and then it just talks about reinstates any proceeding offense custodianship and any avoidable transfers that were avoided under bankruptcy law and he lien it vacates any order judgment or otherwise word of this title under section three forty nine b to reverse the property of the state in the entity which is section three hundred ninety three so there is there is some idea that there is finality there i just want to point that out and then section three fifty allows it a case that has actually been closed administratively by the court that allows you to reopen it i agree with judge when that essentially no one is waiving argues with this course decides at the subject matter jurisdiction doesn't apply then subject matter then  the same arguments would essentially all come back into play which is you know the plan isn't feasible because unless there is litigation proceeds that were to come into the estate there's the creditors cannot be paid for the plan it's not feasible and obviously i'd join in the  eleven twenty nine a nine which is there's not enough money to pay the ministry of creditors and and and they don't know provision has been made to pay it mr creditors the last thing i'd say is to the extent that there are standing issues that come up  rebuttal you know judge nelson at one point indicated there was some concern about standing the parties addressed that and we had you know obviously our clients are impacted by the litigation that was called for under the plan a little bit if and i'm saying this hypothetically because we have been conferenced on this case so if the apollo and we're to lose on both of the first two cases that we discussed is there a basic someone can always bring a motion to reopen but is there a basis to bring a motion to reopen oh well i mean there's there's no basis to reopen because there be no assets of the estate to administer the debtor there's no relief that the court could afford the debtor that would be your argument i'm going to ask him that question and the last thing that i would say then to the court is that with respect to the denial of the confirmation order regardless of whether or not g two or baker and hostetler have any standing the court has an independent duty under section eleven twenty nine because the cour operating essentially to protect the creditors in that instance are the policy behind the law really is that the courts trying to make sure that the creditors get treated in accordance with the the dictates of the bankruptcy code and so the court has an independent duty so regardless of whether standing as  we had it or not and we submit that we do the court would still have to go through the eleven twenty nine exercise all right thank you myself it would be pointless ok all right now you can go with your other arguments i was just curious i'm sure that i agree the the issue would have to be revived if we did win on th then we would present this to judge nielsen now we've got a pot of money to do something with the objection was making the jurisdiction up out of hope hoff this was the reason they objected to the plan in the first place we never reached that issue below but you can't create jurisdiction in the plan if it's not there so but but i think your honor is right on if there's if there's no pot if you will distribute it we're done that's it so it's really going to turn on the