they please the court sean o'keefe and we have the appellant's like this notice huge in this case that my clients had article three standing to object to the motions in the bankruptcy court the issue here is whether or not they forfeited that standing by failing to appear and make those objections given the nature of the objections jurisdictional the case law is clear that they do not waive want to set aside our order because of a lack of jurisdiction so you're saying that because it's a jurisdictional issue they didn't have to do anything that's exactly right and so makes sense with the day have to file a notice of appeal well yes absolute why if they didn't have to do anything why didn't have to do that know they didn't have to do anything at the lower court they preserve that right they preserve that issue for appeal and their failure to appear does not vitiate their standing which was a ruling of a district court i think you're confused maybe confusing two types of standing i mean one is whether they have an injury that's article three the other is whether they have appellate whether they can get review on appeal and those two different things well the injury here is to some degree but in this particular case dealing with the aggrieved person they were clearly aggrieved in clearly had standing to object at the trial level the nature of the relief granted was purely jurisdiction subject matter jurisdiction the bankruptcy court had no power whatsoever to rule on what was before the bankruptcy court also had no jurisdiction in the one thousand and sixty two so my clients have the right to raise that at the district court i would also note that as this court noted in the commercial case which the district court cited as favor but in fact in new years in standing in that particular case the trustee went before the court with a plan confirmation hearing which was a contested matter in sort relief that could only be obtained through an average server seeing which is exactly what happened infinitely stronger because there was no question that the bankruptcy court had subject matter jurisdiction rule on the plant is just of the nature of the relief granted could only be granted through an adversary in this particular case if you if i refer to ninety four of the excerpts of record at least as to the real relief of the bankruptcy court i am going to declare in state that mr bronstein has had enough votes to be installed so what can we go back to commercial for a second so i'm looking at page thirteen thirty five of the court's opinion so that the court says even though we agree that attendance an objection should usually be prerequisites to fulfilling the person agrees standard the trustees failure to give the investors proper notice that the plan avoided their security interests excuses them from fulfilling these perec was in this case so wasn't the issue there that they hadn't gotten the proper notice that's why they were excused from having to had to object what  referring to was what you're doing in a contested matter is you're seeking relief that can only be sought in the adversary proceeding so that he noticed efficiency was you needed to give them a summons and that requires a summons and a complaint in this case i'm coming to this court saying it was clear jurisdictional overreach the bankruptcy court that property was rejected two years earlier it was no longer property the estate  was completely done under this court's ruling that is conclusive that is conclusive the bankruptcy court acts in ram in the property was gone it was also the other issue this court has repeatedly said under nine thousand and six the two that you cannot modify the deadlines under rule fifty nine and under rule sixty that is the mechanism that the court used to reach out and bring a property that was no longer properly the estate back into the estate and begin to exercise jurisdiction those are two clear overreaches that he absolutely had no right to do my clients were entitled to raise that these issues come up in a contested matter that that motion was filed on twenty one days notice my class required just one in fourteen days this three thousand entries on that bankruptcy court docket when you receive this inch thick stack of paper when you start working on i started the next morning when i was called and they said this is what happened i said that can't happen so i rushed i rushed that out and i will tell you on all that came from another case so all of those the issues and pleadings you that you worked on the issue before us many times so in when the case gets up to the bankruptcy or to the district court on appeal and his argument to this is i think it's a motion to dismiss the appeal for lack of standing or lack of jurisdiction whatever gets filed but was there did you try to give any reason why nobody had filed something on time and showed up at the hearing yes i did what what was it what i did was to make sure the district court ha whole picture i rushed out my entire appellate brief and the excerpts of record so he could consider that none of my question though is did you try to explain to the district court why nothing of gotten filed on time and why there hadn't been an appearance at the hearing in front of the bankruptcy court yesterday and what was the explanation and where and where do we find it i believe that i explained to him that a motion filed in a bankruptcy court which an elderly investor receives which in their mind this is nothing to do with me i'm not getting sued why are my rights being affected affectively those people had at most twenty one days notice half of the really that was granted which was the declaration that the votes were in favor of mr grimes the that was not sort of the motion if you re basically the explanation you gave to the district court is that because of the clerk who because of who your clients were twenty one days one enough notice that's exactly right twenty one it was there are did you also move to the bankruptcy court to reconsider  appeal of the rule fifty nine order now almost yeah maybe they are not really appealing that now well i mean it seems to me i was sort of surprised by that because it seems to me that as to that motion you know clearly we're a party body is your understanding of the state of one through could case law on this question as far as i can tell we have fun jill r and then we have commercial western particular case afford standing in this case solely on the issue that they were seeking i know it and that but the question is is there a holding in if there is a holding anywhere that says that are memorandum opinions and that doesn't count so what published opinions you're talking about and i don't have any published opinions of the circuit announced that there are more so you were wrong when you said what you because it is very odd isn't it odd to have the question of whether what's basically a perceived holder fault become a standing question well it's it's a standing question that is unique to bankruptcy cases i understand because otherwise you would have parties just like in this case there are hundreds of party but that may be true but these are the people as i understand it most directly implicated well i will point out your honor that the district court was not offered any evidence on the issue how these folks were actually adversely or directly impacted but there's one of the there's one other thing though and it is so it is i read the transcript so there's those goes out for the hearing nothing gets filed by the these people there's an argument at the hearing the lawyer for them doesn't show up the judge announces a ruling says the motions granted because it's unopposed but it's kind of plated that there's going to be a written order issue right away before the order gets issued counsel comes in with his motion to reconsider and gets all of his arguments before the bankruptcy court before the order actually gets issued and in fact when the bankruptcy court denies the i think it's called an emergency motion to reconsider the bankruptcy just not really an emergency haven't even of the order yet so here's my question why isn't it since since they got in before the actual order got entered in the bankruptcy judge objection to to give them whatever standing you think commercial western requires because commercial western requires the parties object to the relief busted in the first instance ok so why is that why do why is that important because you want to give the bankruptcy judge a chance to deal with it right yes bankruptcy judge got a chance to deal with it and i thought i may have said see she honestly i don't know if it's a he or she is he ok right you know that the another factor in this case that know i mean you don't go about that be no month a month past the deadline you know and here and it seems to me this oversight is much less you know severe then the trustees paying these people what the i'll call them to me seems like a small oversight of the of the local rules and then in spite of in spite of the trustees no not a lack of diligence huge lack of diligence honor the although that particular order of the bankruptcy court the order approving the assumption is not actually what's before this court today because that appeal was dismissed and in fact the reconsideration order but that the hearing  should be in the order in the judge says yes go ahead and put that in the order it so that everybody understands this order is going to come in that's correct that's going to be something that memorializes the ruling that was made at the hearing and the ruling was effective on that day more because i'm curious  what was the explanation as to why or financial who was ousted from cook for control of the debtor because he had done all kinds of improprieties both before and after the bankruptcy because and the bankruptcy judge had appointed my client as the chapter eleven trustee who subsequently asked for the conversion of the case a chapter seven but mr harkey when he was in control of the debtor lied under oath several times and one of the times that he lied under oath was at the meeting of creditors when the trustee asked him about the various analyses one of which is the one that's at issue here and mr hart he lied under oath and said there's nothing there and so much money when there's nothing there has no assets he also has no assets you know that there's there's no money there and there would be nothing for the trustee to administer and my client had submitted evidence before the bankruptcy court explaining that this was exactly the reason why he did not assume the operating sold how did you find out that the property was sold while i read it in a desert sun article and so my client presented all of this evidence to the bankruptcy court and asked the bankruptcy court to not amend its prior order which is what the that was not what was what was asked was for the court to extended the deadline that the court itself had said back in february fourteenth extend that deadline for cause or cause shown and then allow the assumption and the assumption here on early circle back to commercial the exception in commercial is for lack of proper notice but because i mean the trouble with commercial is that i held that somebody can't come forward because they didn't show up and object not that i've been able to find and you say there is a seventh circuit opinion but there's a fourth circuit case for the country essentially that's work and if the quote standing that this person is essentially a party but they default no it would not ok and the reason is it's a it's a it's an issue of standing which asks are you hear properly in the first instance and when i say here i mean before the appellate court it's not a question that asks what kind of argument can you make it's true we agree with the uncontroversial proposition that subject matter jurisdiction arguments are not waived that is a rule that the news from the items like this jurisdiction a question a my understanding is that their argument that there's a didn't show up in the first instance and the question is if we thought that the not showing up was was an ordinary procedure own default would it matter that appellate purposes which is narrower than just article three purposes i know that and we've discussed that earlier and i'm now telling you that i don't necessarily know that commercial resolves there's and i want to know if we decided that that wasn't the case i e it isn't true date that if you don't show up and not a person who plead for appellate purposes although you may be it you may have have an ordinary default  why i think the problem is is that you would be putting promise you don't agree with my premise that the president of france you would be you would be putting you'd be putting the arguments that you're that you're planning to argue objected in the bankruptcy court who who did not in fact file a notice of appeal and so it's not that the issue was there was a default against everybody people were hurt and the bankruptcy court made its decision and then fact that iraq failed to plead or appear in this action makes no difference when the entry of a judgment is sort of going to the party who has failed to plead or otherwise defend a district court has an affirmative the duty to look into the jurisdiction over both the subject matter in the parties which is we talking about now this was a ruling by this court in re to lead to ul i won seventy two f thirty seven zero seven that's one of many cases that i cited by this court for the proposition that a procedural  that's the problem here what you are they're making too much of the distinction between article commune and article one in this particular case what the aggrieved party deals with is when general motors files bankruptcy and has a million shareholder one person objects of the plan even though it doesn't affect them then that's the bankruptcy issue that's not the case here this is a case where in article one court exercised jurisdiction over a property that was not properly the estate as of two years earlier this is a case where they obtained relief by raising it at the podium with respect to the vote that was a declaratory relieved judgment to the detriment of my clients which was not sought in the prayer of the motion as to which the court didn't have evidence so the case of commercial applies in my favor because it was