line investments that you have cited and i've looked at it carefully clearly indicate that if the main issue is not the if the main issue has been decided and that the issue that may be in a lot of tory is not the main issue then it can be considered be a final judgment of the court is there any fact relationship between the accounts receivable issue the inventory and law issue in plain three which at least understood to be a combination of well my argument has been at the outset and continues to be that no there is no relationship what happened was is that mr alice and september of one thousand nine hundred seven started dealing with straight line investment that were working in the offices termed them and i think i can't help but just repeat what what happened at the trial court love when when we talk about factor in factoring is a sale it's not a loan it's not a an advance counsel for the trustee said that normally if factoring agreement has yeah i know all of that this is clear error on the law as to what factoring really is a factor is a person who buys accounts assumes the risk of lost if the account bankruptcy court was in a lot of story it was in a lot tory from day one and i don't think it was because mr ellis had no choice but to take in the field from a monetary judgment that the judge did not rule on the other cause of action there's no question about that but i think he ignored it because there was no recovery to be had by the trustee so i have what i'm looking at it is that that the case is that the circuit has decided on those in lockett's where it feels i think are just thing from our present is not the main issue that was remanded and so i think that we can look at it from the standpoint that we have a final judgment that mr allison had to take take over the operation and it did it had no immediate cash so it began to sell its accounts receivable when it had to meet me meet apparel pay payroll taxes it would go out and account i didn't sell all of us accounts just sold a few of them and as you can see it had millions of dollars of a chance receivable but mr allen only bought two hundred thousand dollars of those some paid quickly some didn't but when  mr gault for straight line investments needed cash and he needed it now he would call mr alice and say i'm prepared to sell you these accounts if you can buy them i'll sell them to you and he'd give them a discount of anywhere from five to ten percent which was normal within the trade mr beckman who was over twenty years with crocker bank testified that that was normal in the factoring business so he lived by the account the account better with then you either pay mr off directly or the money would come to straight line which would then be passed on to the strauss now the issues that i think that are important besides the fact that debtor had no interest in the accounts once they were sold are that there was no depletion of straight lines of state thank god dollar for dollar in fact had they not sold these accounts they would have lost the twenty thousand dollars in mr when the money came in and it was no longer a property of the estate and even if it had been i think the defenses that we raised in at the lower court of recruitment and set off and earmarking all all of plot that these you i think it is distinguishable i don't think that we have that situation the main issue that was before the bankruptcy court was the issue on accounts receivable and i think that the bankruptcy court  missed interpreted the law when it said that a factoring arrangement requires a repurchase within ninety days that's not what a factoring arrangement  penalize mr alex for making this deal with a straight line straight line is going to get a windfall they got the hundred sixty eight thousand dollars hundred eighty six thousand dollars  the judgment the following the remained by the bankruptcy appellate panel we attempted to have the matter heard before the bankruptcy court the bankruptcy court declined based on the  testimony about that basically mr ellis received one hundred sixty eight thousand dollars worth of lumber amatory and it was only a one hundred thousand dollar authorization to obtain credit under section three sixty four  don't know however i think i hate to agree with mr or not but one point i do so well there are some who would dispute the possibility that that could ever happen the law the defenses that the power raises are we think for the first time on appeal would be equally applicable the lumber transaction because the money was advanced by mr al's under this what they call the custom milling agreement it was not in fact a custom only agreement it was an agreement to loan money and whether that was  hundred thousand dollars that was authorized or not i i believe it was i believe that's their position but there was actually one hundred sixty eight thousand dollars that was was loaned and there was him and tori taking probably correct well be in terms of this custom knowing agreement which was really an agreement to loan money and the guarantee that mr alex testified was all encompassing trustees legal obligation is to pursue any and all assets potential claims that center to benefit the estate as much as possible right absolutely so there are some legal constraints on the ability of the trustee to simply five forty nine avoidance actions there are only three things that have to be proven by the trustee there's crocky the estate that was transferred after the commencement case and it was not authorized by the court or by the coke those three things you don't have to prove that's a very good question what we're quite happens to i mean if it goes back and there's a trial on on on the remaining two coins then is there another appeal to or what would happen if the appeal were instead taken to the district court that's a concern that we have that's a very big concern because the appellant would obviously try to do that he would opt out of the battle and argue the same issue before the district court honor because mr there's no question for mr ows testimony that he advanced one hundred sixty eight thousand dollars to purchase lumber and then he took lumber another value of one hundred twenty four thousand plus of cash so the same reasoning would apply to that depletion in other words if he would argue that he didn't deplete the estate because the state received the money however under five forty nine that is not an element and the once the trustee establishes the three elements then we jump to section five fifty of the code to determine whether or not we can recover money and how both it ordered that the receiver balls weren't collected come back to the estate and that the money that was collected come back to the estate may i don't think that the conspiracy to circumvent the order entered by the bankruptcy court authorizing this hundred thousand dollar loan and that's a factual determination made from the testimony by the trial judge now i page three where it says because there were already competing plant claims to the accounts receivable the court granted the motion but denied the debtors request to utilize accounts receivable as part of the collateral and even the appellant acknowledge that there were competing claims as to these accounts receivables and that was a part of the reason i submit that the bankruptcy court did not authorize the borrowing secured by account receive a bill now mr or not makes a his argument based upon whether this is a sale or this is a borrowing withers of three sixty three applies or three sixty four applies to the extent that it was a sale three sixty three or vides that if the debtor is authorized to operate the business and unless the court orders otherwise the trustee government's case may enter into russell case which provides the vertical and horizontal pass and that this appellant met neither test because the appellant had tried through debtors counsel who happens to be a college town council to get an order of the court allowing a transfer of these accounts receivable unable to do so he was unable to do so so they came up with this scheme under the guise of a custom milling agreement that was in that was the form but in substance it was an agreement to long money to the debtor and to purchase to have an option to purchase these locks now the the bankruptcy court that what this constituted was a conspiracy to circumvent the court's borrowing order and under three sixty four and i submit that the bankruptcy court did exactly the right thing  applying the elements of five forty nine and granting judgment based on section five fifty now appellant argues recoupment assets are earmarking can't ever come in in the control of the debtor once they're in control of the debtor then your marking doesn't apply your marking is if the bank's going to make a loan to the d for the purpose of pain a third party vendor then and they that's the agreement and the money goes directly to the third party vendor that would be an earmarking type argument recoupment it's not secure and there was payment on that urine tape so mr alice can't claim recoupment the the set off doesn't work because these claims are of different under section three sixty three but it's not authorized what you have is a claim to get the money back it's on equal priority which general unsecured creditors it's not an administrative his concurring opinion of the history in great britain of the very very bankruptcy scheme and that the conclusion from that example is that sometimes the bankruptcy law can be very harsh particularly when one does not act in good faith as mr alf's did here so i submit your honor that the that the judgment of the bankruptcy court should stand and that the matter should be remitted for trial on the remaining issues thank you   was property of the estate and our position all along has been because of the factoring arrangement that once the account receivables sold it was no longer a property of state now whether or not the debtor had the right to do that it is a question that the trustee has raised from day one the debtor has a right to act in the ordinary course of business under section three sixty three of the bankruptcy code and every single witness including the yes we factor accounts all the time and mr ause was in the business of buying accounts he had purchased from mr simms the appellee in this case and another transaction about a year or so earlier several hundred thousand dollars of notes at a discount so mr allen was in the business of purchasing accounts he had testified earlier that he had purchased in excess of five hundred million dollars in accounts because that's what the witnesses said mr beckman as a as a officer manager for wells fargo bank and crocker said factoring is is the method that we use all the time banks don't use it anymore because concrete evidence in his mind that mr als only got back one hundred sixty thousand dollars but we know that's the case so he thinks that because mr ellis got two hundred thousand dollars worth of accounts and he only paid one hundred eighty six thousand  that maybe he should pay the other fourteen thousand to the estate well he only got back one hundred sixty thousand dollars and so he bore that loss as any factor would so it's a windfall to the trustee into the estate if mr als is required to pay back the money that he received on the purchase of these accounts receivable it's just and i wan this issue and it seems to me that judicial efficiency requires this court to hear this matter and make a decision to send it back to the bankruptcy court or if you're denying you have jurisdiction would cause a hardship not on on everyone mr allison have to start all over again get a new bond take the field through the process and and then maybe when you do that here in about three years issue under under forty nine that they transfer list property of the estate and all of the issues of the senses that we raised at the bat are appropriate here as well recoupment earmarking and