to can be distilled down to either you file a motion or the time isn't extended that's consistent with the authority that says the deadlines to deny discharges are strictly construed without qualification and it does seem to be countered posed against the us trustees position that section seven hundred and twenty seven dollars is supposed to be strictly construed now  play the extension correct that's correct and the court did approve that stipulation correct yes and you're saying that the requirement of a motion as you see it can't be waived that's correct your honor if if you look the only case that was cited was a pennsylvania case i believe there is no case of that authority in this circuit in fact the shower start why should it be wave a ball by a parties stipulate into an extension of the court approving it because what with the motion add to the to the party you know other than a stipulation right the fact that it's strictly construed under the rules i mean it doesn't add or subtract anything if it's supposed to be a statute if it's supposed to be a repose my understanding is it's not a limitation it's a repos your are used saying of the lack of emotion prejudice you somehow the fact that there is a stipulation rather than a motion prejudiced you somehow i don't think prejudice is an issue or i think it was didn't i think i think you know we have to take the lead we should take the language of the cases per se in the sense that if they say it's without limitation or it's a limitation it's without qualification and it's strictly construed then the fact of a stipulation should matter that was argued in shower stanny shall astonied try to argue there was not a formal stipulation but there was an agreement between the attorneys and they tried to use that as the basis so position saying well he didn't suffer prejudice the motion would made a difference it seems like a bright line test to me that that's my position and then you had the nd instance where the case was dismissed by the clerk's office and the courts who sponte came back so now when you want to talk about whether there's prejudice there there was no motion eater and so there was no way to dismiss or a motion to dismiss right i'm but there was no motion on either side of that there wasn't a motion to dismiss was a pure clerk's error and likewise there was no motion to fix the clerk's error and it was well that's correct there was a sewer sponte by the court without a motion so to me that seems like a due process issue you can't you can't have it both ways you can say i didn't suffer any prejudice are you entitled to have the adversary proceeding dismissed to a sponsor at that point you agree that the dismissal was a mistake yes ok and you're code prevents the court from doing things was wanting well i think the rule supersede the statute i'm not saying the rule supersede the statute i'm saying the concept of limitations sylvan the concept to this court does the court have limitations and five is one o five omnibus statute that gives the bankruptcy court the power to disregard other applications of limitations so then what this court with this panel may be suggesting is th mistakes well then how do you deal with the fact of a of a strict construction with some twenty seven denial i don't agree with it i guess i mean i believe on of are you ok so and then this brings me to ok so that i believe is the opposing counsel's brief regarding rule one thousand and nine dollars the right to amend as applied to section seven hundred and twenty seven i think it's instructive there is no th circuit case is on point the appellee did not raise any nicer cases so the question becomes what is the real purpose of one thousand and nine there seems to be what i see is a contradictory tension between the it appears the position of the us trustee is that and twenty seven is a strict liability statute i don't believe there's anything in congressional intent or anything in the statutory language that gives evidence that section seven hundred and twenty seven is a strict liability statute so then well i mean it does say in most subsections knowingly fraudulently and so forth so the mental state of the debtor is relevant that makes it not strict liability right i would agree it's not strictly i don't think they're saying it is strict liability the way how would you explain what you mean by strict why it's application meaning that if the rule one thousand and nine says and i nothing in the rule one thousand night reads this you have the right to amend it any time obviously up until trial within the specific restrictions unless there's a finding then oh then you really didn't mean to you were trying to defraud the us trustee are any of the applications that are presented in the pelleas brief is not what the rule says but then you get into the issue of ok so what is the purpose of one thousand and nine dollars but is the application purpose of one hundred and twenty one thousand and nine respect to this case when my position is there appears to be the argument of a close to strict liability and then i see a lot of in the case structures if you notice there's a lot of excuses for why seven hundred and twenty seven should be strictly applied however if it's very interesting that the application of seven hundred and twenty seven is supposed be strictly construed in favor of the debtor i don't believe that was the case i think you know i think you're right that there's a really good reason to encourage people to men schedules when there ought to be that ought to be acknowledged and people ought to do it when they get additional information or they remember something or goodness knows what but what i what what troubles me and i think what judge ferris was saying is you're basically reading the knowingly and willingly knowingly progeny piece out of the requirements and when you file something you're required to list everything that you know about and you know if you can see all something or make a false oath knowing we are fraudulent only you know at that moment there can be a lie about it doesn't mean you're now to a man you can still a man but that's those are two different questions in my mind ok which gets me more to the facts of this case so sort of an interim to the facts of this case which i believe was not considered by the court or disregarded by the court and it has to do with the issue of what is the rule of the chapter seven trust what is the rule of the u s trustee contra posed with this case in the application with the debtor the facts show clearly for example the petition filed in may two thousand and ten over one million two  accounts receivable were listed on there is no dispute about that is not a disputed fact to bankruptcy's were filed my personal one and the company bankruptcy you had two thousand three hundred and forty money hearings the testimony of the chapter seven trustee whens that his practice was that if any assets were disclosed whether it by schedule or informally that he would investigate  into his practice was to have a discussion with any concurrent trustee or concurrent case that would be related to his bankruptcy case which was which was the case you had a concurrent case going cases look at certain cases look at certain assets there were problems with the attorney that was representing me i was not an expert in bankruptcy a big deal was made that i was a licensed attorney i can practice in the bankruptcy court and so then in mean if there's a me exhibits three and four i think are important to this court to look at because it shows that the answer in the counterclaim raise these issues there was a counter claim against the chapter trustee that said you're not going after the asset all these issues related assets claims with the trustees to go for us trustee and i heard the equitable discussion the previous case which i believe the important here did not object at that hearing when the chapter trustee suggested that in the schedules in the schedule i had an attorney i was honestly it was not my practice you know i and that's why in the testimony at trial the whole point was and i think the point of this this hearing of the definitive rules can the trustee in the chapter trustee turn a blind eye to information that comes to him if it's not perfectly in the schedules and this gets back that strict liability so district does the this is the don't believe they think i've gone to one side on my case and i believe obviously there's a more pure side on the case that somebody forget but you know has reason to forget or they didn't look at it because then now it gets on a case by case basis so it just seems to me inconsistent with the position of a u s trustee they're a department of justice they're supposed to do justice and the concept that they waited until two thousand and fourteen to follow the chapter se trustee doesn't do anything for two year period of time until forced at the june th hearing basically by judge donovan to proceed with it waits till may two thousand and fourteen to proceed and then judge money in her tentative stipulation that he had entered into could not validly extend the destruction deadline counsel waived those objections by signes to ration himself the requirements of four thousand and four are not jurisdictional and they can be waived and when counsel agreed to extend the deadline and put the facts and in the stipulation he thought were necessary and we did as well and the court approved it that was the end of it as far as we're concerned the extension of deadlines by stipulation is common practice we've cited case law in our briefs that indicate that a c p lated order were agreed order can satisfy the motion requirement of four thousand for the case where the attorney simply agreed of course does not satisfy that there was nothing findings to the effect that the debtor before that in the during the one year before the bankruptcy is filed concealed assets there was a finding by the court that he knew about these claims but i think if i if i'm hearing judge correctness question it's one file schedules and the effect is as of the day you file the schedule who that's when you tell people i have these assets and presuming lad i don't have any others so as to be you know that's an estate issue and that you made the right on the question is how do you get to a concealment within the year or part of the bankruptcy case if all you're relying on is the schedules out of the schedule speak backwards and a factor i guess is the question and your honor we frankly believe that this court can affirm to be in this case and forget us so you're asking us to overturn the judge's ruling property concealed after were things that the court found on mr shoemaker did not have the requisite requisite intent the inheritance and the gift to the girlfriend but as to the litigation claims that form the basis of denial of discharge the before the bankruptcy was filed it's unsupported with any factual findings that the judge made it seems from the record that the judge conflated a two way with a to b and so what do we do about that i think because the record is clear that the litigation claims were concealed we think they were concealed both before and after the case was filed mr shoemaker does provide each and record the accounts receivables and schedules he was in the process of closing as off practice schedules he essentially says here are the records that i have in support of the claims that are due me from my law practice he'll miss multimillion ten million dollars before the bankruptcy is filed hoody to conceal them from what he did do to conceal those assets before he filed this petition is there any evidence that he did anything in that time period to conceal anything from anybody the fact that they didn't show up in the agent report i think is some evidence of that i mean i think what the aging report showed up in the schedules right it and we don't know if anybody before that the bankruptcy saw the agent report right transfers i'm making the distinction between transfer and concealment there on the statute a transfer we can we can point to and i'm are accepting your distinction as i we're not talking about concealments we're talking about transfers much evidence of transfer she talking about concealment clear we're talking about concealments concealment by its nature is different than transfer we believe that there was essentially a continuing concealment here that lasted throughout the bankruptcy case and that really the point that i really want to make with that is mr  shoemaker made a conscious and deliberate decision to conceal the litigation claims and he admitted that the pretrial stipulation and for me to get from that again it's closing trial brief he thought that this was some sort of discussion between him and a chapter seven trustee as to what he would disclose and what what he would hold back he again refers to it as a negotiation he simply either didn't understand or didn't perform his producer a duty as a debtor to conceal all of his assets and look to chapter seven trustee make that decision and he admitted that and that that fact i think really form the basis of the denial of discharge under seventy two thousand seven hundred and eighty two dollars and we can quarrel about whether it's a two a or a to b but i think it's uncontroverted that there was a concealment of assets in this case as to false those again we don't have the issues that we've been talking about with concealment we think we have admissions on falso in the court and certainly a firm under a for  a if it if it desires but here the falso is related material facts these were a material fact is something that bears relationship to the bankruptcy the assets of bankruptcy estate it does there have doesn't have the showing of harm to creditors  and here it's on controversy on top of it mr shoemaker knew about these litigation claims and he said we held them back and was deciding perhaps when the court got down to its ruling had sort of said well let's do what i really find that was concealed was  judgment very clear that's not the test the fact knowledge that there was fifteen thousand dollars default judgment at the end of all this but he came back later and said that these were worth millions of dollars and when he was sort of propping up his litigation ability and the value of these claims and trying to persuade you to walk away from the discharge ability lawsuit because he was going to bring all this money into his bankruptcy estate but in retrospect four hundred thousand dollars probably wasn't such a bad estimate of what the value of those claims were certainly but more importantly there was a whole different group of claims that was not disclosed this shoemaker did disclose really a former client list as i understand it and he contended it is former clients owed him money the litigation claims were large contingent based clean value in the millions of dollars it's undisputed that those claims were not in his original distinction already the right to freely amend schedules does not absolve a debtor of life billet under section seven hundred and twenty seven and it's not a strict liability statute we've never suggested that it is and judge bears quickly pointed out that the elements case now if well this wasn't the core confused time i have deep respect for the court but the court started talking about the materiality of the non disclosure which would not have been an element really i don't know how to fix that unless you appealed it the key factor that put into motion the only evidence the u s trustee was able to use to try and deny the discharge based on a foray i really think and if this court has mentioned the fact that all the other that they raised in the original complaint in the st i'm in a complaint the court said it wasn't material oh and by the wayside so why should the u s trustee under the concept of equity and its being in a bankruptcy being an echo equitable court why should they be able to sit in a hearing the premise of your argument is i think faulty here she's saying that my obligation to accurately and honestly disclose assets on my bankruptcy but just in the sod depended upon the conduct of the u absent some how they can lure me into filing amended schedules the children my st schedules were inaccurate and false i don't that's that's not a viable argument counsel well your honor i don't think it's i don't think it's absolutely the way i'm not an absolute argument i'm saying there's two sides to this equity demands looking at both sides not just one side it isn't one sided the u s street trustee can go and say this person is fraudulent they didn't perfectly follow us to do certain things equity demands that you look at it and i don't believe it was correctly looked at i think there were a lot of things that weren't done whether it's the chapter trustee of the u s trustee it seemed the trustee focus strictly on the debtor not what the chapter trust he was doing and i would ask for a remained consistent with that your honor