engage in a conversation and have a talk about this case when you get up and if there's something you don't understand you can certainly ask one of us and we'll try to make ourselves a little bit clearer ok have a seat mr feldman whenever you're ready bankruptcy will seventy fifteen elation back your honour's can only apply to an earlier filed pleading in the same action that did not happen here and to understand exactly we have to get into the interplay of the bankruptcy rules and the first rule of consequence with respect to five twenty three options as well four thousand seven four thousand and seven sets up the rules of engagement with respect to five twenty three options in bankruptcy court it requires that a complaint requires that complaint be followed by a date certain unless the court extends the deadline and then dictates that the seven thousand rules govern five twenty three actions on the seven thousand rules your honor our specific federal rules of civil procedure that incorporated with respect to atmosphere proceedings the second will consequences import for this case is a seven thousand was themselves well seven thousand one for example requires or dictates that a five twenty three action is an adversary proceed will seven thousand and three provides an adversary proceeding as commenced by the filing of a complete seven thousand seven which is just probable civil procedure seven dictates or delineates what is  pleading versus what is not a pleading and other rules within the seven thousand for example seven thousand and ten dictate that every pleading must have a caption every plea must have a title a filing number assigned to it as well as the title of the complaint last name all the parties i mean let me ask you a couple of questions first designer stan you have really two issues about this was not filed in the correct action is found the bankruptcy proceeding as opposed to an adversarial proceeding not exactly wanted to happen is that a motion was filed in the main bankruptcy case instead of a complaint being commenced adversary provided all right now with regard to whether this is a motion or whether it's a complaint it looks similar to a complaint it has everything that you would expect a complaint to have except a caption is it your position that if someone just makes a topographical error and captions a document incorrectly let's assume that they file in the correct place that it's an adversary proceeding but it was happened in fact here you argued on appeal that the motion lacked any of the substance that would be required in a complaint other than the way it's captioned up no your honor we did not take the position in our pellet brief we would note that when the record  for our purposes we're not arguing here whether or not it actually was a discharge ability option or not you reconcile your position with the federal rules of civil procedure notice pleading if the substance is the same as between the motion and the complaint that you say should have the main bankruptcy case you commence a main bankruptcy case by the following the bankruptcy petition you commence an adversary proceeding by the following of a complaint if you look at the captions in the underlying bankruptcy litigation it's readily apparent you have i that case would dictate the ruling here why do you think mendenhall is correct i understand that there's a lot of good policy and a good a lot of good institutional reasons for not allowing a court to retroactively change a deadline that is set by statute or rule or by congress or the like but if the court arbitrarily sets a deadline what  is so magical about the deadline that is horrid imposed that doesn't allow the corps in an effort to do justice to go back and let someone have an extension retroactively why is mendenhall right on that score because it requires understand the interaction between move four thousand and seven and rule nine thousand and six will nine thousand six be one dictates of the court can employ an excusable neglect standard with respect to certain time deadlines in a bankruptcy context will nine thousand six be three however dictates that the standard set forth for four thousand seven see is what governs so excusable neglect as mendenhall of correctly noted or held why when your honor ask when the court can do justice four thousand and seven see doesn't allow for that either do it or you don't i guess the way i would put a cloak leader on or it's close is perhaps good for horseshoes and grenades but close isn't good enough in the context of four thousand seven c and five twenty three action so with respect to mendenhall does that go for any deadlines in a five twenty three action or just a filing a complaint with respect to following the complaint and would be specific adversary proceeding which includes the following of a complaint but everything else in that action is sort of more loosely goosey it would be no different than any other civil proceeding in a district court that to the extent there was a basis to gra excusable neglect with respect to a filing that's mr something's done improperly and yes the court if appropriate to look to inexcusable neglect standard but excusable neglect is mendenhall noted and held is that it's completely improper in the context of the five twenty three and four thousand and seven c deadline even though you can extend ahead of time you can extend it but you have to file that motion to extend the deadline prior to the expiration of the deadline to file your complaint so in this case that's actually what happened and if you can if you can move the deadline mike what's what's so magical about the deadline or thousand seven c dictates that's a magical deadline that's a hard and fast deadline either do it or if you don't you lose your rights went on to hold that the filing of the main bankruptcy case could somehow be deemed a complaint without giving any real consideration to the seven thousand rules that i previously discussed but were to meaning us really is critically wrong is that the ged there was no commencement of an adversary proceeding so outside of bankruptcy you cannot use relation back with respect to a pleading filed in another case and similarly the same result should incur should happen here but you know there's a there's a rule of law i don't know how it plays out in the bankruptcy context so i'm just ruminating i guess but there's a provision in the federal rules or in a federal statute in title twenty eight that says if something is filed in the wrong court you know that court has no problem in transferring it to the appropriate court so if we have a notice of appeal filed with us and it's supposed to be filed in the district court we don't just toss it we sent it to the district court for filing as of the date it was received here so how does that play out in this case if they feel as if they had filed an adversary complaint in the bed the main bankruptcy case and styled it incorrectly what would the result be it's not possible in other words when you know it's possible because they make a mistake well it is possible to make it stick and that could be excusable neglect but that doesn't apply in four thousand and seven see in the filing a five twenty three option but more if they find ok so they if they file an adversary complaint but they miss label it right and they filed in the main bankruptcy case what happens they call it you know a motion to dismiss but everything else except that style of the document the pleading is a complaint of what happens records not pool of before your honor but i would just tell you it's not possible from the clerk's office the way you follow an adversary proceeding as you actually have to initiate it there is a specific process and in addition i know but the clerk at the clerk's office makes a mistake too because a clerk who sees it says oh motion to dismiss i'm filing it doesn't look through it to see whether it's really a complaint or not because the first couple of paragraphs on the first page are sort of you know boilerplate and so the clerk of the bankruptcy court files it and only later do people figure out oh my god this is posed to be an adversary in a completely new proceeding so what happens then so i think the mendenhall actually guides that an mendenhall the court entered an order that was perhaps a little bit confusing as to when the actual deadline grande and if that case the deadline the court ruled that the actually was the earlier deadline under its order should be enforced not  later interpretate a later deadline that could be interpreted on the order as well and the court said that creditor needed to follow the process and take action and be diligent in a fail to do so so your honor is hypothetical a creditor would have to follow what's going on see there is a mistake and take immediate action and perhaps that's after the deadline and that result would probably was that would probably result in the creditor also being out of luck but the bankruptcy court the creditor you don't believe in that hypothetical the bankruptcy court could then just tell the clerk a that was misdialed but it's really an adversary complaint go ahead and start a new adversary proceeding here with a date relating back to the date it was filed if they say the creditor beat the deadline by seven days but he filed in the main proceeding and called it a motion to dismiss he forgot to change the caption from something that he had filed before and the bankruptcy courts figures it out two weeks later and says to the clerk ok an adversary proceeding with this document which is really a complaint but you're going to file it with a filing date of whatever it was actually filed in the main case is that permissible possible i'm not trying to avoid answering on this question it's just as a matter of process you can't do that in other words you followed in the main case you're falling in the main case there's no way for you to file a commence an adversarial proceeding under the clerk's wars and how it works it's actually done somehow f a bankruptcy court and the main bankruptcy case can't be done well but but i'll tell you what were the analogy is and analogizing between criminal law and bankruptcy is dangerous i'm the first one to admit it but i'll tell you why i'm thinking about it so you know at least where i'm coming from a defendant in a criminal case has a criminal case caption right you know case number twenty seventeen c r blank blank blank blank c r jordan person gets convicted gets sentence appeals all direct appeals are done want to file a motion to vacate which under federal law is technically a civil action either title twenty eight of the u s code but instead of filing a hate b s action in th on the civil side in telling the court that he wants to initiate a hate b s case he files something styled a motion to vacate as a motion in the criminal case and judges at least in this district see that happen from time to time and all they do is tell the clerk of the court hey he's trying to start a motion to vacate proceeding under two two five five of title twenty eight go ahead and initiate that and transfer it over to that side of the docket so at least that's where my thinking is it may have it's a pass fail test you do what you're supposed to do or you fail and that's why the meaning is is wrong the third reason which is very simply the artistic license that the decision takes with respect to the bankruptcy  is masking a very straightforward issue is the creditors warrior made a mistake and meaning as the court said we don't want to hold the creditor accountable for its lawyers folly but however mendenhall the court did exactly that and so if you miss the deadline and therefore you're out of luck similarly if you negligently don't follow the process and missed a deadline you should also be similar to look thank you or i was velma thank you so much you've save your time for there's no there's no dispute about that everybody agrees that you through your lawyer ryle this document style the motion to dismiss is right in the main bankruptcy case and that was filed within the period of time during which an adversary proceeding should have been filed i think everybody's on board look at ok lesson is legally for us what effect did that filing have or could have had that's really the brawl issue that we're trying to grapple with well obviously the judge was able to take judicial notice i guess of that filing and understand that that there would then after we did find that it was titled an error and there's a lot of cases like there is no cases that i know that are disputing that it can be they go they go back they revert back to that original filing and by the district court as well right the district judge agreed with your position that this or that this document essentially was the equivalent of a complaint and therefore it related when you f actual adversary it related back to the date of this motion of the fifth right right which with which it was considered timely i think one other issue would be that this was never raised prior to the second appeal by counsel the which which should should make this here your argument is that mr ferguson raised this equitable tolling argument only on appeal to the district court but did not raise it appropriately in the bankruptcy court yet initially and in their first appeal was believe it was dismissed and there they did not raise that so that they didn't preserve this argument my understanding was that it was raised to the district court but had not possibly not been raised in the bankruptcy court is that the same thing you're saying ok we'll certainly take a look at the record and the sequence of events and and filings on that point as you know the court denied that motion on the eleven one of sixteen when fergus n raise the issue of motion to strike in his answer br court denied that motion the way that i'm understanding it is that if this ends up going back to judge isikoff and i guess we would just amend the filing or  for sorry little dyslexia for sixty four for sixty seven to that they had all that identical almost not identical scenarios with going back to amending that and adopting that date as filed timely they've had a lot of bites at this thing and you know i got it i got destroyed this whole thing this is a this was a abuse of process case and an abuse of process case rights to continue to do so and hopefully side with in fact that to two courts did make the correct decision here and that my  judgment summary judgment is non dischargeable verdict actually so i have an award we're toward and there still are things to be decided and so on the civil end but  anyway i just hope a g guys all agree with my argument here today all right mr bean thank you very much for for coming in and speaking to us do you have any other questions for me i don't thank you very much will certainly take a very close look at it and consider carefully the arguments that both of you have made and your film and you have your rebuttal time available not just some very br comments first timeliness has always been front and center in the connection with this adversary proceeding a motion to dismiss which is part of the record specifically and directly argues the issue of improper as well as our quibble tolling it specifically addressed in our motion to dismiss which was denied by the bankruptcy court we never found an answer to this complaint or answer to his complaint it was a pending motion to dismiss at the time the motion for summary judgment was filed denied isn't that the next step in the sequence even though you object to what the court did a motion to dismiss was the motion to dismiss was denied right and then amended complaint was filed right at that point in time we then found a subsequent motion to dismiss it was briefed there was never a court hearing or to education of that motion to dismiss and while that motion to dismiss was pending mr bean found his motion for summary judgment which the court then considered and world upon did this may not matter but did you tell the court that couldn't proceed to summary judgment on the merits until the case was that issue your honor in the summary judgment hearing we again preserve our arguments on the timeliness or the lack there of respect his complaint and the court then still proceeded to go forward on the no i know my but my my my my question concerns a different procedural issue just just for my edification doesn't i don't think it affects what we have here today but normally one of the things that the litigant can tell a district court is until you adjudicate my motion to dismiss one way or another the case is not at issue and if the case is not an issue you can proceed to a determination on the merits regardless of whether you huge judge get the motion to dismiss right or wrong that that argument was not discussed not raised from reviewing the transcript the most for summary judgment which is also part of the record i did not see that specific argument the argument that was made by counsel in the bankruptcy court was that what happened to the creditor that case was unfair it was a deadline that was mis just bust just by a few days and that case there was some confusion with respect to the court's order but nonetheless the court adhere to the rigid standard that set forth for the week thank you very much