may please the court susan york on behalf of plaintiffs and interveners all of this case is about whether the district court erred in dismissing her failure to name the real party in interest when real parties were actively trying to enter the stupid and prosecute the claims on behalf of the class looking to rule seventeen there are two main problems for the district courts analysis st there's simply no way to square the district court's analysis with the pla two years later when cleanness counsel learned of the prior bankruptcy's for the very st time i opined is incorrect legal standards in deciding the rule seventeen issue from having talked to a lawyer that they had a cause of action and so the the court didn't focus on necessarily what the warrior were armed but what the fact the client and then by focusing on what the clients knew and didn't do anything about found that the delay was actually attributable to those to play those as well as law was very confused at the time and it was i'm unclear whether these are viable claims i'm sure hawaii law and there have been decisions in the district of hawaii saying not have these weren't and that's why this case was stayed for four years so the district court found that at the time plaintiffs filed the bankruptcy as they did not know they had legal claims related to their foreclosures and the court also found that at the time clean just talk to counsel in this case for the st time knowledge just to clarify the question they were aware of the existence of their legal claims that form the basis of this litigation yes yes i think that he thing which the district court recognized is that there's a disconnect between being aware be existence these legal claims and understanding that there is any relevance to a prior close bankruptcy and i think that this report credited the plaintiffs who said they did not realize that their prior bankruptcies were relevant to the litigation in any way shape or form and that is the reason the bankruptcy case they didn't know but i think what the district courts analysis really turned on is the lack of a reasonable explanation for the delay between two  and fifteen when counsel learned of the bankruptcy proceedings but yet there's a failure to do anything about it until early two thousand and eighteen and so i think the court the way i read the court's ruling  is that look i'll accept the fact that you didn't know that you have a claim at the time your bankruptcy proceedings were pending but certainly counsel learned of it he knew what to do and simply failed to do it and so in terms of whether it's difficult to determine who the real parties of interest was it really wasn't difficult especially when you're dealing with a fairly experienced counsel who's had the standard practice that he deviated from and in terms of whether it's a reasonable mistake or not but the lady basically led to the conclusion that it was a weasel mistake so was it not appropriate for the district court to take those into considerations in determining whether ratification should interest and till after an objection a reasonable time has been allowed for the real party to step forward and enter the suit and so essentially there are two questions here this court is sort of out of the judicial gloss on that understandable which is a very very low threshold as the court has made clear so i would direct his grades attention to john's for example where the law was very clear at the time that counsel chose which plaintiffs to name he simply got the law wrong and that was good enough for this court because the court said well was a little confusing and the district court had accepted a stipulation in many plaintiffs this isn't really the best reason but there's no sign of active d so that's the st the st point is that the standard is quite low and the nd point is that the mistake we're looking at is the mistake to name the wrong party in other words the party that's not the real party in interest and that mistake only happened once understandable mistake in this case all of the plaintiff's arguments fail now when the defendant pointed out that these were the wrong plaintiffs these plaintiffs that had no claim against the bank for a period of years the court took briefing on that issue she took a declaration from plaintiff's counsel explaining his perspective on what happened and she held the one and a half hour hearing where the judge eyeball counsel for both sides decision but it was not a difficult area of law the plainest counsel had worked in that area of law even knew the bankruptcy trustee zero already she ruled additionally there was no good explanation for the more than two year  below i mean there's a twenty page a letter that we've filed on that but in terms of the equities of the bankruptcy trustee s it is very perfectly legitimate consideration within the district  russian under rules seventeen in terms of how do you assess what to do with the bankruptcy trustees and the exact point that you're raising was made to the district were several times in the briefing at excerpts of record and seventy seven and again at the hearing where she was where the argument was made don't do anything to this proces they didn't do anything wrong but ultimately there are other considerations here including the protection of the way that bankruptcy is supposed to go there would be no deterrents or no sort of teeth the rules haven't seen at all if in any bankruptcy case out of her you would always be saying well the trustees a separate they should always be led in analyzed by what a lawyer doesn't represent them did before that well your honor so there is case law that addresses the fact that it is still well within the district court's discretion to refuse relief facts of this case either the unsecured creditors are essentially credit card companies the vast majority of these deaths are less than five thousand dollars they have nothing to do with the alleged miss foreclosure that that took place in this case in some cases years later and so we're talking about a bankruptcy bankruptcy is that have been ten years ago the creditors never filed proof of proof of claim or participated in the bankruptcies in any meaningful way either before or after they were told about this alleged new assets and so under these circumstances there's essentially no great injustice it well the court focused primarily your honor yes on the intentional deliberate and strategic delay by the plaintiff's counsel to keep this class action alive which is which is a perfectly proper thing for the court to have action as was discussed earlier i believe both of them attested that they knew of this possible action in two thousand and twelve and yet they joined this case and two thousand and thirteen so these plaintiffs did know or knowledge can be attributed to after the finest counsel knows he has the wrong players you know as these players have no clinton whatsoever he keeps them in place for more than two years without saying anything or doing anything because his goal is that the class action proceed because bankruptcy trustees are notoriously bad class representatives they owe five usury duties to the creditors totally separate from the class so that's the strategy of as you can see the district court addressing here saying well the case is moot therefore we have no intervention motion would rest and we have we have cases that look at that even if the named land becomes moot in this case  the motion to intervene what i'm saying is the order here essentially already addressed that i mean the motion that intervene is the last step of the plaintiff's council's strategic then deliberate action that's how he ultimately solves the problem but leading the class that is by the brain a new plan of so you don't have this bankruptcy problem at the core did in some sense address that the core grabs i read i read same additional plane of sewer name to the nd amended complaint and the court did address the nd amended complaint and discussed some element of prejudice but really the right way to look at this is this is all one scheme  all one course of action by plaintiff's counsel but it's designed to keep the wrong plaintiffs in place until he can fully until he can fully replace that and so that's what the judge is reacting to and i think the right way to read that order is to say based on what i've already identified what i've already found under rule seventeen pounds against the nd amended complaint and the prejudice thereof there's no reason to consider intervention separately intervention as the last leg of the of the scheme that the trial judge was refusing to permit to go forward in this case and moreover as for intervention  all five of the entertainers have says filed litigation against the bank in their own cases you know why state court which seems to be where they would prefer to be since this case even began in state court and was removed reasons why these individuals don't want to be represented in class members but that's a different question from do you have a legitimate class member who maybe maybe why not let the district court make that a nation and i mean i hear that you might be right and you have a lot of excellent briefing on the wind but i'm reading the court's order we don't have an answer this happened the entertainer certain around ensued the man could have moved forward it's not clear to me now that these intervenors could would want to or could possibly come back and so this case now even if they understandable the state is the core of this phase and whether the plaintiffs fail to show an understandable mistake to the district judges is perfectly entitled in the exercise of her discretion to say this is the end of the case you've brought a case on behalf of people who have no claim it's not understandable these actions that you've taken along the way in a strategy that you had when you knew that these were the wrong plaintiffs and you pushed forward anyway and so the end result of that is the dismissal of the case and recognizing that the motion to intervene is the last leg of the strategy by the plainest counsel to ignore and go around rule seventeen it's probert to consider it all together and that's ultimately what happened in this case mr fitzgerald explained something to me you don't have much time but in reading the order  involving the trustees it was a maze order that the trustees would be in a position that they would not be responsible for whatever errors have been made by the the parties before they tried to intervene be somewhat technical and it seems like the trustee came and said we think this case has merit and we want to proceed but they may have been the wrong slot to put it in but it seems sort of technical could you explain that to may just what it was that they did that w bad that even though they wouldn't be bound by the prior actions of the players lawyer nonetheless they shouldn't be allowed to be come in the room seventeen so your are a couple of things as true that happened long before they got into it so it's not them anymore they didn't make that mistake that's true your honor and so but nonetheless the case i mean they are they are separate from the case before they come in i think the problem is the statute of limitations has gone by and so that's why they're that's why essentially the trustees care about this otherwise they could just bring their own case against the bank of ratification by the trustees comes from this court's decision in turn and the idea is that in bankruptcy if a trustee is going to substitute they need to actually substitute yes it's really our claims no we don't want to be named you go ahead but the claims are really for us and that's essentially just asking for a further violation of rules seventeen it's not the back spatter here doesn't set of i'm a normal at a time when the defect can be cured in other words when the trustees in this case can step forward into the litigation so that's the nd issue with the bank story this is an affirmative defense the bank is the one they didn't raise it int useful to think of this in another context for example the statute of limitations that creates an affirmative defense if during the litigation plaintiff's counsel realizes that the statute of limitations has run out a claim c under no obligation to affirmatively raise that issue it's up to defend it to identify the issue to weigh the pros and cons of raising the affirmative defense and to raise it in a timely manner there is simply nothing nefarious about  plaintiff she was a plaintive for two more years she was the real party in interest there was no problem with the suit someone could have been substituted in there was going to be no issue also wonder will seventeen a three substitution limitations problem with adding new plaintiffs so for all those reasons the bank account is just not accurate and i'd also like to turn to the idea that the banks rule their claims which they had initially omitted through inadvertence just like here and the court system plea goes through incentives actually this is question to dismiss the case does not protect the bankruptcy system