and we've also considered judge lewis presentation today and we're happy to grant the motion and i will just add parents eth was chambers or jason to mine so mr ranson this we are neighbors of ours and i know that they've been invaluable assistance to the judge and also to the court this year so again the motion is granted and i would savings bank and public service company of new mexico versus the united states two thousand and eight five zero seven five ms davis good morning one is that they should be entitled to that amount simply because it is on the accounting records this court's decisions in glendale tell to us all reject that argument you don't just look at the accounting entry you must look at the reasonable market value and that's exactly judgment we said that if the court denied to our cross motion for summary judgment then it should proceed to trial and i'd also note that in hansen where this court made it clear that stock which was not contributed in this case but that stuff could be considered a contribution for purposes of restitution the court nevertheless remained in the case for further proceedings to determine the reasonable market value of the stock it wasn't just the nominal value or the value were recorded on the accounting books at the time of closing no no your honor the plaintiffs obtained a cd but they did not put it into the thrift and after they recorded on their own books not cash distributed to the trip but on their own books they recorded an amount for but if you were going to use the closing date as the operative not the data performance which is what the restatement in this court's decisions will then you still have to determine the fair market value at the date of closing which would require discounting for the risk that none of those amounts ever would be paid at most for example the earnings preference at most they were required to provide twelve million dollars but that was only if profits were in that related company so interest ok the twelve million dollars stream of income never materialized although write but they didn't get that money on the date of closing it was just another promise just like the promises in west that which this court said were completely inappropriate as a basis for restitution so really the issue here for this this part of the case is whether the promises are more like the promises in west fed which the court said are completely inappropriate as any basis would even value them for restitution or are these promises more like the stock in hansen or the court said that could count as a contribution but the court remained of the case in other it only been a trial remained at the case and said that the trial court had to make findings of the reasonable market value of the stock and on the date it was contributed here this isn't even we don't think this rises to the level of contribution c and the r t c as receiver and the united states that part of the award is completely inconsistent with this court's decisions the united states if anything would have been a creditor in the receivership that part of the word is is contrary to the statutory scheme which requires the receiver to recover its costs and finally it's also compensatory it doesn't put the court called restitution that it doesn't put the plaintiff that in the pre contract position it purports to give it expert report that quibbles with the underlying values there's nothing of any evidence in the record that says that real estate isn't really worth two hundred eighty seven million dollars it was worth one hundred fifty or fifty or seventy that's what the  will fifty six g s to david claiming they needed more discovery judge smith below denied that request that is eight abuse of discretion review they have not preserve that and feel they have not appealed the judge's refusal you'll find excuse me at page one hundred one hundred of the joint appendix he wrote nice that the government's request for discovery is unnecessary space time for clues re assertions so they even have and preserve the right to obtain additional discovery the record is as it's always going to be in this case and what you have is not a single identification a single reference to anything suggesting that the value of these assets is anything other than what the government six three of the joint appendix person when he recognizes that what you have there is that b h l was the transfer an entity in it had it on its book values to historical basis of the property property that this is a thirty six year old partnership it had properties that have been there for quite some time that is their book value of the store basis what was recorded for our speed and one thousand eighty five was the present current market value that was the whole purpose and and when he goes through quite some detail on those two pages recognizing the weather as an accounting matter artspeak could book it based on historic book value or the present market value so there is no distinction difference and an important point once again is that despite that discrepancy between one party's historical basis and the current market value what the government does not do is contrast that the current market value as of one thousand and five was indeed worth five million dollars this partnership share there's nothing in the record that they can point you to dispute that the critical point turn into twelve million dollars again there's no dispute that our speech wasn't fa for in the persian know and that's that's the critical point about the earnings preference the whole notion of the preference was even though you're entitled to as a one point seven four percent owner of this partnership to just that share of the profits we're going to give knowingly valueless asset and hides that that that's a different case but where you have a situation as this one where all parties at arm's length negotiations and the flood and asked me to recognize had it's own fiduciary duties to not just sign off on any ran number came from thin air but to independently confirm it that there is no basis to suggest that there is a windfall in that situation and ultimately you have a right to be disagreement then boils down to  signed over a one point seven four percent interest in the partnership that was not a conditional signing over that was eight as at this stage just as in your honour's example there wasn't any gap between signing the papers and presentation of that balls written ninety one recognized in the us and allows the only thing that the government did here was to acquiesce to a structuring of the transaction that allowed the plaintiffs to maximize the benefits they otherwise would have been able to certainly one of the arguments we raise below in the end but the key point is that you these are generally available that it's the idea that car is all the time structure deals and ways to make it more tax advantageous to one party or the other the idea but there are even in situations where there might be concessions granted for one reason or another i think it would be an odd rule to suggest that if i grant a concession to coke contract a party that gives them massive tax benefits that i can then take those offsets because of my innocence at that point real quickly i know i'm three million dollars the government's not entitle to that offset simply because the plaintiffs never received that three million dollars that was money pledged to the bank this court's dealt with scores of winstar cases where the slick has made a joint claim for recovery that never separated out their claims according to their corporate status the way many of the other windstar plaintiffs have for example in so cal where the shareholders had very different claims than the ins than the holding company and the thrift itself ministering the receivership and they recognize that that is a claim that only the thrift can assert but they can't have it both ways they can't say well we need the thrift here in order to pursue that kind of money but ignore the trip when it comes to the government's offset also their contribution was to the thrift not directly to the government so to the extent they're making an argument that the government did not give them three million that other than the thrift the other party's three million dollars directly their own restitution claim should fail because they didn't give the money directly to the government and also that it's very clear from the record that without the three million dollar cash contribution this deal never would have happened it was the only real capital contributed and it was critical to make the deal happen so if the government hadn't put in the money they never would land a reasonable market value on the date of performance is what this court said were true but when you can it depends on the case in some cases performance continues throughout the contract for example the government's goodwill performance that will agreement continued throughout the contracts on time performance occurs on the date of contracting it depends but this court going to get to at me has always said restitution is meant measured data performance because for example in acme it's not as you would say that  dollars a share and then two months later it's down to ten dollars a share would still go with the value of the thing if that's the market market value it is this is not a mark three five million dollars to