issues with execution the first being it's not based upon our balance sheet analysis or at analysis of the value of the assets of this is really about of the experts it was sort of about all the experts but there was only one expert that actually conduct value of value analysis and that was the appellant's expert the defense expert submitted he looked at their balance sheets and said well you know as of march thirty first two thousand and eight they were still balance sheet insolvent his opinion ended at march thirty first two thousand and eight he criticized our expert's opinion of june third two thousand and eight but didn't it didn't offer another opinion and the court went up to february first two thousand and nine and there was no no asset valuation that would support that and the discourse opinion in re transworld which everybody agrees the court was bound by the court was required to determine the valuation based upon a hypothetical of assets between a willing buyer and a willing seller willing buyer during a reasonable time period taking into consideration is a realistic framework and that analysis was not done and we would submit that there which leads into the second error which is not accepting our expert's opinion the expert's opinion was rejected summarily because of the ed the thought that when he applied to liquidation value it's clear from the record he applied  clickable balance sheet test the balance sheet test only is what are your liabilities what is the fair value of your assets and which numbers bigger and we would submit that only one person did that analysis that analysis wasn't done after june thirtieth two thousand and eight and it takes the court discounted the fact that he applied a liquidation discount to certain real estate assets or wasn't all of them it was just to the directly on real estate but it did he did so based upon these documents and the if that's not streaming application of a quick sale slash liquidation type discount i don't know what is and you know did they put up folks to look at his numbers and say no we don't think that's right they did but his numbers are based you know this isn't a case where we have our documents they have their documents in argyll well runway and they they apply the other og i used their documents the story is laid out the story there are solvency is laid out from their documents and you can look at those documents and come to the conclusion that they were just sailing along fine until september two thousand and eight when the even brothers crashed so to speak to this issue wasn't group restore to review the appropriate is is a clearly erroneous standard but is this clear his held even if there is evidence to support it if on balance a review of the record this court is left with the clear thought that that a mistake has been made that can be clearly erroneous standard and is a high burn absolutely we would submit that this is the one in a million cases that actually should be thought in and we were just the girls the court of the problem we have is it's very document intensive but you can't get into the documents which are all  occupants and come to a conclusion that this entity was solvent until february first two thousand and nine it absolutely wasn't on any of the tests and particularly the balance yes and with that i will move on to the if she w bad face that heard you say he is making you look at the end this is again clearly erroneous standard if you're going to look at this and say well he stood up he took the stand he said he followed the procedures that that doesn't get there we thought it would be odd because all document intensive everything was but we would submit as well that gelman as held in holds you can't look at that operating agreement and say that that disclaims automatically and you have to prove bad faith you have to go through those steps and again he took the stand he testified he went through the steps and you look at the evidence and you look at documents you say no way you can't you know far be it for us to say that the bankruptcy judge is not a reasonable fact finder ari but respectfully you can't look at that testimony and compare it to the documents and say you know that he followed the process he was required to follow again the same documents that prove that he didn't follow the process he was required to follow on the l l c agreement confirmed that he didn't do what he was supposed to do on the duty of royalty either i mean this was specifically with his g something and in fact there were several components that they had somebody interested in buying it and i think they thought they had a buyer now the fact that they all to me at least couldn't sell it and all similarly it became something that that maybe wasn't as great as people thought at the time i don't think that's the standard i think you have to view it at the time that he's making his decisions on behalf of opus east and you look at the record you can't say that that was opus east best interest frankly we thought that we would need we thought that as a matter of principle do you agree with that you know i agree that he said he did that but i think if you look at the documents and see what the involvement was he didn't do any of that and he couldn't you know he had a miraculous memory when he was being directed all by his lawyers he couldn't remember a single thing about anything when he was being questioned by the trustees lawyers and in fact you know again somebody can't remember any of the details of a of the transactions but remembers value i don't know that there was it there was an entity called chatham that had valued it somewhere between eight million and sixteen million i believe and a good bit of that was there was a litigation going on it and that  end that had a settlement offer somewhere rachel like seven million dollars so there was you know there was evidence that there was a value to it at the time to opus east again the fact that that may have created after the and that value went away i don't think that's the particular timeframe you're looking at you're looking at the time the decision was made in the decision was made literally a day or two before bankruptcy the transfer was was taken place it was a transfer directly to the firearm say look at you look at it and come to your own conclusions of whether in light of their documents and all of their documents a reasonable fact finder could come to the conclusion that the judge didn't you know i hate to use the term step into the shoes because of course we all know you can't set it up is it better so we're asked some level that's what you do when you reverse right and we would say this is the case again their documents tell a story that just is to denis ryan figure baker daniels on behalf of all of the police who are the defendants in this case i do think our brief is adequately addressed most of the issues raised by the  for each challenge transaction but he footnotes that and he says the bankruptcy court did specifically find that round portion burton undertook the required analysis to resolve conflicts of interest with the transfer of traditional analysis which bolsters that finding because she and not only do we have mr brown horse testimony and yes they can pronounce his name correctly ok we have his testimony but we also have the testimony  testified in deciding to enter in the transaction as the judge found getting one hundred thousand dollars for what all of them considered to be a worthless asset at that point was in the interest of open seats that needed the cash going into  bankruptcy and the facts bear it out g n d paid one hundred thousand dollars they spent another six hundred fifty thousand dollars litigating with the g s a to no avail in fact the case was ultimately court i guess it was the better sequence that he could find a brodeur's and yet you got the peers in companies at least started up for adoption but but at the time before the bankruptcy they hadn't even proposed an option agreement they had a letter part of three days the play just had the opportunity to cross examine all of these people the best the plaintiff could do was put in this exhibit of a letter prior to the bankruptcy where peterson said we'd like to conduct some due diligence that's all there was nobody was interested in actually buying with maryland enterprise interest at the time this was the one opportunity you could opus east had to realize some cash and in fact when the dust all settled the buyer lost half a million dollars on the transaction and that also frankly challenge you know we've we've sort of glossed over that mr brown horse was on both sides of the transaction first of all i'd say it's a bit of a stretch that he's a beneficiary of one of the fight it in the bankruptcy court opinion plaintiff argued that part of the failure of mr brown horse was he didn't even know who the buyer was so how could he believe that he was on both sides of the transaction if as they're arguing he didn't even know  did so i think there's ample evidence in the record from what the trust from a judge wallraff observed of three witnesses who were directly and personally involved in the transaction bol rushed it's bolstered by the record the exhibits and other things i understand you know that this standard is yes if there is clear error and nothing in there in the record  reasonably supports the finding you can reverse that but the standard is also just because you would look at the record and look at the same testimony and you might come to a different conclusion that's not sufficient that's not clearly erroneous and i think it's particularly important here where so much of this case turned on the rive testimony of these witnesses which judge waller after you know sat and as as the case law tells us observe the demeanor the tone of voice she was the best judge of credibility and we all know reading the cold record now two years later we're just not in the position that she was to judge whether mr brown horst or any of the other witnesses were being credible what do you  board books and and the witness testimony right things his his opinion was that the balance sheet values were a fair approximation of fair value let so much understand nim's chose this problem in manufacturer but they manufacture who's not goods but buildings and if if great buys a building they put it on their balance sheet at the purchase price and then it slowly depreciates over time and according to gap and in fact that's why we have the argument about is really fair value well probably not because it arced appreciation of value could actually be more or less in this case it goes the other way when when i'm rich and builder like o east buys a piece of land for say ten billion dollars usually using that rate that's what goes on the books and then as they invest money they usually borrow you use m street they put ten million dollars of equity in to acquire that property they borrowed sixty million dollars over time they put that money and the building is built and it's being actually increased on the balance sheet based on what they think they could sell that building for you know reasonable period of time as they invest more and more and it becomes more valuable and obviously want to becomes completed usually the book value is just the combination of the heat that money actually put in the debt  and in the case of m street that approximated about seventy million dollars and then they signed a purchase agreement for ninety three million dollars and there's their twenty three million dollar profit so in this case the  he calls it as it is adjustment i think it's the fair value adjustment and then his problem is he went from seventy five million down but he still had fifteen point six million dollars of equity so that he said well you know they're going to have to sell expect to get a fair price for it you certainly are not going to sell nineteen million dollar buildings in thirty days and contend that that's fair value that's not liquidation that's not a forced sale that's just not reasonable and  judge found you know the problem throughout this is that the trustee the judge made lots of findings as you know her or her opinion is heavily annotated with citations to the record there's no question they're supporting the record for everything she did she's very meticulous it took nearly a year for her to write the opinion and you can you can see the effort and all the trustee does is essentially offer alternate facts he would like you to believe something different than what actually happened he hypothesizes they would have had to sell their assets in thirty days to pay down bank of america in august but they did pay down bank of america in august and they didn't sell any assets and in fact at that time they had him st under contract for twenty three million dollars profit and they sold several other buildings in the third quarter as the judge finds at up out of liquidation value so the problem is you know the same is this cash flow in adequacy analysis starting in two thousand and six it is your honor noted the problem with that argument is they paid all their bills till they came due in february of two thousand and nine so we really have here is the judge is doing her job she's looking for the cost with some depreciation and then you have to figure they're not in the business of selling your craft or what's a reasonable period of time and in fact this court found i think it was nine to sixteen months or something like that you know of a fairly considerable period of know that was just a different situation but what she found is she did not follow the transport standard because he looked at it as a forced sale and so she said looking where where stop there but she looked at the evidence and what she found is the officers of office east in her testimony admitting saying gosh at the end of january we realized even though the buyer given us five million dollars not refundable earnest money  posit the credit environment was such that they just they can't get the fine and some to close on a ninety three million dollar acquisition they just can't do it so we need to take that out of our calculations we're going to run out of cash in the next three months without that twenty three million dollars we need to start holding bills that is you know the cash flow insolvency they determined by february first we are unable to pare bills as they come due we're going to start holding people to feel is somebody to seek to not be lax about it to not hold out for the highest price mr projects concurring testimony is that pages fourteen thirty five to thirty seven of the appendix and i think the most important fact is right after that in may two thousand and eight opus east signed for sales agreement for him streaked with a twenty three million dollars profit in it and a five million dollars not refundable earnest money deposit it is they reasonably felt people want way from five million dollars even even in this industry five million dollars is a significant amount of money for something to just throw away they had every intention of closing that and if it hadn't been as the court found th of the officers at the holding company in the lower level recognizing the economy is starting to change yes just as a player points out bear stearns ran into trouble that spring so they were not blind to the problem and they were saying january two thousand and eight opus course chief financial officer told the board that opus east was quote unquote bankrupt that's january two thousand and eight by march two thousand and eight they're already telling everybody to sell whatever the heck you can for whatever price you can get this started long before lehman brothers second point one one three your honor you brought up plaintiff's exhibit one one three and you heard an explanation of what mr wrong horsed told the judge he really mad well i think you can look at exhibits one fifty two to see what mr ron horse really meant because he subsequently said i'm said to memorize and i'm to the heads of the operating companies which said our company is dangerously close to be insolvent and i need each of them to do the following immediately one sell anything you can and as soon as possible i think that pretty well tells you where he met in one thirteen moving on a couple of qui reality the debtor's management team was shut out of the negotiations and didn't even know who the buy was until the day after the deal was signed and that's plain as exhibits two thirty one and three thirteen edition of bankruptcy court relied on marshall burton  quote unquote highest ranking officer of the debtor at the time who consented to the sale in burton's only email so you confirm that he had no part in the transaction and that he had not read the documents or participated in the discussions p s two thirty one p x three thirteen did you take the stand did he say that he will everything about it sure he did the documents say with the documents say again i come right back to is this the case you know if this is ever a case and we have a section one of our all credibility counsel told you that the judge was in the best position i would tell you with ropes with so much thrown at that judge over the two week period so many documents and so many claims and moving parts so it's  making the point that maybe that wasn't the reason that it just a bad explanation i guess but the fact remains you all can look at the record and see for yourself thank you thank you thank you counsel thank you for the for the