it made a significant and substantial change in the law prior to one thousand nine hundred seventy eight the law had been that a debtor could take the fifth amendment in a bankruptcy proceeding but that pretty much precluded his discharge and in the one thousand nine hundred seventy eight act seven twenty seven a six was added a six says that a debtor who was not granted immunity and i'm paraphrasing may assert the fifth amendment privilege and his failure to answer questions is not the basis for threats in the aisle of a discharge what we have here everything else aside is a question of  statutory interpretation seven twenty seven a five says that the debtor must explain before the denial of the discharge the loss of assets the two seem to be in conflict i have found one case that squirrely addressed it that was in re potter it cited in the in the memorandum but what  in the first set of schedules which mr pro that mr hale's overegg did pro se in the second set of schedules in the amended schedules and putting these schedules together was very difficult it was and i must correct my statement in the brief because i read the response to the subpoena yesterday it was invoked at the beginning of that and then we went and attempted to say what we had and what we didn't it was in only place it was not specifically invoked is in my response to the motion for summary judgment but the debtor invoked the fifth amendment every place i could think of i had a prior case in which we tried to be helpful and we'd wait we end up waiving it so in this case so you did you didn't bring it before the bankruptcy court hurt in any way in terms of bringing your own motion because your honor we asserted it in there were a subpoena we asserted in the schedules we asserted it in who knows a lot of things that you asserted though down below but you didn't really make an issue in terms of presenting it to the bankruptcy court and the motion for summary judgment and you really it's not really clear that your you didn't bring it before the that these are we did raise a decision in an acting seven twenty seven a six and in law versus eagle the supreme court in an in with viewing the bankruptcy code said if there's a specific provision it trumps a general provision and here we have a general provision in seven twenty seven a five that says the debtor has to explain and then we have seven twenty seven a six that says debtor in the debtor was was lost was discharged but kaesong if that i have two two questions which are both about this topic but not specifically related to each other rather what they're saying is that that a long he has not a sufficient reason to deny a discharge and the reason why that's important is it seems to me you're arguing that there is some absolute shield  king facts once i've mentioned the fifth amendment i have to be able to get my discharge no matter what the circumstances what issues position on the meaning of that subsection i think the meaning is can just hold it up as a talisman and say no you don't get to ask me anything but you have to do one step take one step more than saying well you didn't answer it on the basis of the fifth amendment schedule and filed and answered some of the questions and we didn't get to the next step the next step would have been to do that the two thousand and four exam that the trustee got an order directing him to appear for but never served and didn't do anything a month or two months before the charges that my for my fact and my second question is related to one that has been asked of you and that is looking at the back decision concerning the motion for reconsideration is the back accurate in stating that the debtor did not raise the fifth amendment privilege issue in standing to the motion for summary judgment in the bankruptcy court either in writing or or had and it's still me a question of not having invoked it in fact there was a mo to commence an explanation given i e there was a west indian say nothing you said something about what happened to the money  yes we did we said that this is the stuff that's already in the record that the court knows so we can't you can't say that we're hiding it i mean the plasma stock that was litigated the the the corporation that on this financial statement was worth millions of dollars it was an involuntary debtor in the case apparently before the bankruptcy court and i don't remember how it was judged or one of the other judges the mastro everyone knows about mr mastro he was a debtor in an involuntary chapter turned out to be a seven a lot of that stuff was was something stuff that everybody knew the records in this case were seized by the mastro trustee put on a video cd and we didn't get them until really late in the proceeding and  it was impossible to figure out what they were so i don't know if i specifically raised it in the response to summary judgment i was responding mostly to the failure to keep records and we we want on that on that point with twenty twenty hindsight i would have written the brief a lot differently but i didn't the judge considered judge judge door considered it in his motion to reconsider and i didn't want to differentiate between seven twenty seven  five and a six and that's why we're here i've got four minutes left i don't know if there are any other questions i'd be happy to answer him but i might as well we're going to want to thank you and chief among those are the argument that's been the focus this morning and that's the fifth amendment argument that argument was not raised in the response the most for summary judgment it wasn't raised in mr hayes the regs motion to dismiss it wasn't raised at the hearing on the motion to dismiss or the most for summary judgment as a result the issue is not preserved for review and there's no reason for this court to consider it but if the court were to reach out decide that it was necessary to decide the issue then the issue would become whether the privilege was invoked and there were three documents that referenced the missing assets that was the subpoena which specifically asked mr hazel rig to provide information about the missing assets there was the complaint which identified the assets and said mr ha should be denied for a discharge for not explaining what happened to them and the most for summary judgment and in response the subpoena the only place where the fifth amendment was invoked was paragraph one paragraph one was about tax returns paragraph eleven is about the missing assets fifth amendment was not invoked the complaint paragraph forty two listed the missing assets paragraph forty eight specifically stated that mr hayes a rake should be denied this charge for not explaining what happened to the assets fifth amendment was invoked most for s judgment which reference a missing asset it was in a vault the only place that was involved was the schedules and they never specifically asked about the specific us s so the question was imposed what happened to these assets when that question was posed mr has already been involved with at the moment so he has valley and both the defense and even if you had it wouldn't be a defense this isn't a six claim a six provides that a privilege may be involved a five dozen or so for all those reasons the fifth amendment argument and because you i don't understand that point if it had been thought it went to matter because because the general rule is that an adverse inference can be drawn and there is nothing indicating that the privilege can be a vote as a complete shield tear to a five claim essentially what mr hayes a right wants to do  refused in this case on the ground other than properly read invoke privilege to respond to a material question approved by the board or testify so it says that you can't be denied a discharge if you refuse to testify but that's all it said it doesn't say and then if they're right so on that basis alone you can't be denied a discharge but if there is other evidence of sabotaging the other grounds for the nile discharge and here it's a five that's true but the quote you were saying that you could run at first and french and i don't know that you could under a five maybe not und are our position is that the fifth amendment argument is without merit it's the focus of mr hayes a rake's brief so i'd be happy to address any other questions that the court had but other arguments that mr hasan reagan's made otherwise i would just rely on my brief thank you thank you the yeah i'm trying to read my writing i've not researched the issue i was trying to look it up but i recalled from law school which was a long long long time ago the constitutional issues can be raised me i'm sorry that subject matter jurisdiction never mind  but my point is we certainly did raise the fifth amendment objection i don't think it was too late in my view well you didn't raise it when there was a request m specifically you didn't raise we didn't raise it because we answered honestly the subpoena then said we don't have them and that's a different point that you didn't raise it we didn't raise it because you know i think you're on it to the extent that it gets back to the question that that judgment when you say i don't have them that is answering a question isn't it is answering the question that says we don't have failure to explain where the assets went there were any number of our point is that you have to actually be asked about what the assets are you can't just send a subpoena and not ask the schedules only have limitations about what the periods of time they're your honor the problem was that mr hazel rig no one ever asked him sat him down and said what about this and one about that in responding to a summary judgment it's very difficult to come forward and say especially with the amount of assets that mr has already had at one time and the manner in which is life imploded  what happened to things because he really couldn't answer his bookkeeper died his records got destroyed the other records which had been in boxes were picked up by the  had i got i received forty eight thousand individual cd p d f files and it was impossible to go figure out which was which they weren't they were not  aided by the name of the box they were in the name of the file they were just a lenny ated one two three four and except they were using much larger numbers there was no way he conceivably could have done