i guess we're hearing both of her and i don't know which side you want to go you want to have go first you've got twenty minutes for both cases and that i don't care who goes first resolved they rose from the dismissal orders of ten involuntary petitions filed in april of two thousand and one me ask you something about those orders the way i understood it the bankruptcy court did not dismissed opens involuntary bankruptcy filing against miles where we because of bad faith that the bankruptcy court just missed the involuntary bankruptcy that oaken filed against miles because oaken did not prove that miles was not paying his debts as they became due and then the bankruptcy court found bad faith on top of that because there was appeal comes up and comes down there's no longer any right to appeal i don't actually see why we should get any further i mean if it woke and didn't prove that miles was failing his tests as they became do then it seems like the bankruptcy court is fine and dismissing the involuntary bankruptcy and we're done well your honor i wanted to address that issue also with respect to whether they were able to prove that there was generally nothing in them just become didn't they don't have prove anything you just said two things that conflict with each other you wanted in a summary judgment version and then he said it will be six treated as a summary judgment motion are politics ok treated as a summary judgment motion that means if there was any evidence that they weren't paying their debts as they her under style attacks the party with the burden of proof has to put in evidence all the moving party has to do with it does not have the burden of proof is point to the issue that's what the supreme court said i  agree and if they did point to documents that would show no they don't have to point to documents all they have to do is say we don't have the burden of proof on this issue the other shy guys and we don't think they have any proof and the supreme court s creditors to force a debtor into bankruptcy essentially to get control over the debtors assets even though the debtor is trying to avoid bankruptcy when that's done the creditor has to have his ducks in a row when he files in the damaged face i think that least from our perspective that should be the law of the case we should go into the damage phase at this point in time and it could have been done differently but that's not how it was done nothing has a questionable whether our age neighbors and former business partners the sort of curiosity i still live next door to which i did they do ask that question unless they moved in last forty eight hours and suppose that a judge found that it was just a shot in the dark to tie up the bankrupt assets but it turned out that in fact the creditor was right the debtor wasn't paying his debts as they became do and there's no way that it could with his assets compared to his debts so that ground for an involuntary bankruptcy was good but it was also in bad faith but the judge dismissed the judge should dismiss that because it is the state of  necessarily the case but it's basically what a creditor would do with the knowledge that he had at the time of the filing of the petition one thousand and ten expand the hypothetical suppose he did have the information  it was appropriate under the objective circumstances that might be the case i understand i mean i understand the notions well i mean as far as the specific steps you know i don't but i do i'm just really troubled by the idea that when a petition is objectively proper nevertheless it should be dismissed because of subjective motivations of the petitioner and it seems like that's just an invitation to a highly unreliable fact finding but and i would respectfully point out that's not the situation case in hand and you know in the case at hand i understand it's not that was there any evidence that was put before the bankruptcy court in a timely manner one way or the other on whether miles and the nine entities were  there is compliance with the statutory requirements that's pretty clear and from what i've read in all the cases in the silberman case in line and in the tyco or i believe it isn't hard core case that might be a case where the that the defense might be available if they were recognized but that's not the case here in this case here there was it long before the bankruptcy attorney got involved these people had an agenda they wanted to liquidate these partnerships they asked mr mouth to liquidate believe they are i believe they are that's and that's my point what there is that there's an it would be a difficult case and that they wanted her to make the ultimate decision so in this situation it's they were far along the lines on their agenda and they were now i have this memory i guess i didn't do it willing to be a charitable for their actions they want to blame mr miles for this ill decision for this horrible horrific decision that they made to file these case they want to play mr miles they want to blame judge bar the trial judge they want to blame their former attorneys and they an ordinary levy of execution you can have a debtor's examination where he has to tell where its assets are and then the court makes orders actually during the better to examination as as it goes on it is there's also he talks about it basically and he also talks about quite frankly that mr miles was a very quantity than willing to stipulate to a lot of the concerns that they had news willing to agree not to refinance properties without their consent he actually which the court dismissed the petition was that the petition creditors failed to establish a genuine issue of material fact as to whether miles was generally paying his debts as they became do you know the implication of that for me is all i have to do is reach a judgment about whether that basis was that such as to justify the bankruptcy of pelecanos decision because we're reviewing the fact y i think they have to have something in the movie a person so that we can respond to it the only thing the only thing they had in the movie did you prove it in any evidence to show that you would done any reasonable investigation on the nine companies sure i mean there was investment purposes actually in the eighty's everything was negative cash flow that was real estate because the depreciation generated destructions that were worth so much more than that so the price of real estate always generated negative cash  bankruptcy twice your average high income lawyer in the early eighty's i remember would invest in some depreciate will real estate where there was negative cash flow and he had to put money in every month to pay the mortgage that was more than he'd get from the and i don't see that here's why it's certainly evidence that bears on whether there is bad faith whether the lawyer did it or whether it was the client's idea but well relations divorce cases particularly sometimes the client hires a drunk yard dog because they want to junkyard dog they get just what they're looking for and it's quite small but remember in this case that wasn't that wasn't what happened he didn't even pick their attorney needless to say nothing is waived because it wasn't discussed at oral argument i think is in the brief i said needless to say nothing is waived just because it was not discussed orally during the argument everything in the briefs is is part of the arguments