in the chapter seven bankruptcy proceedings which brings us here today and like to give you a very brief overview of the procedural history as to why we're here today actually the law of the case is not that difficult what got us here is a little bit convoluted apply to mr our guest the debtor here because mr our gas case had been dismissed at that period so that's why even judge markets were first to judge what its ruling in the state court as the tightest decisions titus was one of the other judgment debtors and remains one today is a debtor in bankruptcy as well so the law of the case is really not an argument here at all there was no law of the case as prescribed by judge whether counsel for the debtor would wipe the it had occurred at a time when this plot didn't transfer proceeding was pending in state court but he was wrong the reason it was wrong is because it didn't apply for the analysis of just eve you're talking about luxuries versus says it is now we're talking about judge w use of the word luxury yes right and that's what created all the confusion from the inception didn't judge when it equate luxuries with expenses that were not necessary  this i agree with your actually i agree with you the in fact that what's happening is we're sort of bastardized in this idea of luxury necessity luxury is a term of art of you know in the bankruptcy code we look at luxuries as far as unnecessary expenditures not  right and somehow judge when it use the word luxuries instead and judge what it's not a bankruptcy judge and so what's happened in the bankruptcy court context is my opponents have now taken that word luxury and run with it and are trying to use it as a bankruptcy court might use it in a completely different context and that judge market set is not right judge markets went through all this analysis and said this is not a luxury discussion this is an assessor these discussion and so if i can back the lens up for just a moment actually transfer claims are not complicated they really aren't we have overly complicated this case to the nth degree of fraudulent transfer claim is simply this the transfer for less than reason we equivalent consideration except in the context of wages directly deposited into an entire jeez a cow that does get a little more complicated doesn't even talk here about a constructed fraudulent transfer yes so i mean your argument that there was no fraudulent transfer to the wife is absolutely correct but absolutely irrelevant as no argument is that there was a part of the transfer to the wife by making the positive into the entire se if we're basically talking about insolvency at the time of the transfer for less than reason week with consideration and with intent to something totally different we prove intent for the ten badges of fraud to determine whether or not they were intentionally trying to shield the as that there can be exceptions to that for reasonable and necessary housel expenses well exceptions is a very interesting use of word your honor because what we claim is that there's a defense of necessities and that affirmative defense ok but you start off with a concept is that it goes into the joint account and then at that point you you do not include necessary these are all the necessary expenses assuming it's raised as a defense yes so we jump to another argument that is the defendant's argument relative to the i'm sorry with respect to argument with respect to burden of proof and so we'll touch on not just very briefly no i'm talking about what the law is right  position on the law is that our crime officials showing of a fraudulent transfer is to show that the defendant directed his money into the entireties account that's the transfer of the transfer which i believe was misconstrued by my opponent is not payments to golf club membership right and i think i misspoke a moment ago because i was attributing to you the other the argument on the other side but this question of burden of proof seems about you think they have to come in and prove the consideration there was no consideration there is a defense and that the fence is necessities and that's what's referenced in this comment six to the statute or the question is whether that is in fact a defense or whether mitigates part of your cause of action i mean it whether it's an affirmative defense or whether it's simply saying no it isn't it isn't for it's because of and therefore and therefore the question is was it part of your case from the entirety sickout going to trial this trial would look very different and again back to my original position here all the trial is different of the outcome look at the trial is different well do we care for the trial is different yes outcome is exactly the same no it would not be the same outcome we want to trial here's why we were constrained the trustee was constrained by the evidence that the trustee could enter at trial or offer a trial the line item of every deposit that had been transferred by the debtor into the entireties account for each deposit constitutes a transfer and then show insolvency and then pass the burden to the fender said but wait a second some of the money that was transferred into that account has been used for necessary living expenses necessities and we should deduct that from the one point two million dollars in transfers that were made into the account that's how it should go it's that simple we couldn't do that the trustee was prohibited by judge mccullough from doing it that way judge mccullough said no you can't bring me one hundred eighty line items or pages of these deposits i don't want to see those all i want to see is and took judge markets ruling on its face and said the burden is the burden as it was but we brought it to the attention of the court of all parts we brought it to the attention of the court when we first presented all the exhibits to the judge pretrial october two thousand ten and said here are the exhibits that we want to use a trial and he said top for me these exhibits i don't want to hear it here's all i want and forced us under an umbrella of possible sanctions for violating a discovery stipulation to only use the exhibits relative to the five identified expenditures that's inherently unfair well you mean  i would say it's against the law there's what it was i don't know what the law is written the way it was to be fair what's your best authority for the idea that all you need to do is come in with bank statements and cancel checks eighty years of authority in the commonwealth has supported the contention  deposits by an individual judgment that are into an entirely secant our fraudulent transfers eighty years of authority this is not a revelation we're not asking the court to write new law on the is on the trustee and then once and then that then the defense comes comes in that there are reasonable necessary household expenses and that burden is on yes correct and that's that's your position even though rather than the entire burden of showing transfer for millennia have suggested that all we have to show is the transfer for less than a recently equivalent value to a time when the transfer was insolvent that's it but that's the plan of the struck this transfer fraudulent  look further to see what comes out of that entireties account and for what you do why isn't that a part of your burden i gree with you that we have to look at that the question is with whose evidence are we going to view well you have  discovery you can fake evidence from whomever wherever you can find it and judge markets is really i think was accurate on this judge market said that these are documents and information that rests squarely with the defendant and it's extraneous to the prime officials showing a prime officially and let's not forget the statute says nothing about this only a comment addresses the idea of burden shifting and not with respect to visit the vents it's completely a comment in the legislative history comment six which everyone wants to focus on here says nothing on this burden staying with the plaintiff says nothing about that whatsoever in fact the fidelity case that cited is has nothing to do the transfer side produced facts related to the account he had all the account information it sounds to me like in terms of this case the realities of this case and and judge davis and i think  former district judges know that once you get the evidence in the case the burden of proof is in the picture but it's not you know you decide a case based upon the facts before you are you talking is this is this really a question more for  what the third circuit law ought to be in this area as opposed to any real practical consequences as far as this case is concerned no your honor what we'd like to have and if i can run with your point all the facts of the case are not in the case the reason all the facts of the case are not in the case is because the trustee was constrained from putting all the feisty well way soon as you say that of course the other side is going to say well we want a continuation of the of the findings of damages and i don't think you want to that we think the damages analysis has been cut off the way the defendant has put it here saying now that for the first are you saying there should be this case can't we can't decide this case finally it's got to go back four or the pursuit of the step before judge mccullough contrary to what the defense had done we have asked the court just to recognize that we were prohibited from bringing evidence in there is no such prohibition on the defendants from having brought in evidence can tell us tell us if we sent it back list of the posits over the course of a pre determined period which we say starts in april two thousand and three and runs through the data filing a bankruptcy which is another one of the issues on appeal this quote unquote lookback period which really got run amok so we would list all these deposits and we saw the amount of money that was put into the entire he's kept that amount of money constitutes at a time when the transfer was insolvent a constructive fraudulent transfer over the point i thought we were focusing now on what what it was the judge markowitz that that should be done differently if there was it was if it was sent back and there was in effect and now now a separate trial and we sort out these issues  and send it back i guess is what you're asking for and then you can you can basically introduce the entire account and then just say ok now it's your job to the other side to show what what what what you come out of the and then and then we'll take the the what's before us let's assume for purposes of argument that we don't have at the record we're not suspended it is for the questions assume that it was never done sure so then the question is did we asked judge markets to do something different judge markets  ruling i think is instructive judge markets as ruling recognizes that we wanted to do this because judge market says that this sanctions motion should never have been an issue he didn't feel and he does see this in his memorandum opinion he does two or three to two or seven and we agree that reasonable and necessary expenses are accepted as he did and we agree that it with his findings as the country club expenditures  and we don't think that there should be a step that there was not and we we agree that there was no real step for a start he wasn't bound by a step and a stipulation that it be a separate proceeding what is there for him to do i mean you want to you basically as i understand it you want him want to send it back so that you can introduce all the deposits into the account from two thousand and three to two thousand and ten other than that it was just two thousand and three to two thousand and seven are we is going to accomplish anything i would say that it does because again we were asked to identify the luxury expenditures and we were only able to come up with these five categories which you have before you an include the golf club membership the transfers into the retirement accounts and the house the house in florida thank your yeah so these five items we're all going to come up with it shouldn't be upon us to come up with the exhaustive list of what they did with their money because that's what we were presented to judge mcauliffe we so has he want them to account for each and every saying very simple all the money that went into that that it was because it was out of your reach because it was by the end already all that money was the beginning  constructed with religion and then it's with them to come up and say here's stuff that we spent on the sets of these whatever that means and here's the stuff that in that account it didn't come from  all the way to determine whether or not it is a fraudulent transfer the reason we only have the stop of the deposits is this the transfer which i think we all agree on now the transfer itself is the movement of the money from the possession of the judgment debtor so this isn't something where he all of a sudden woke up one day and said i need to put this in the joint account you know to somehow put it out of the reach of creditors then we have an intensely right and we're not bringing in  court judge have all now acknowledged that the movement of the money from the individuals rather than other cases titus and in this case and in this case even the district court judge agreed and i know that we're doing over here and we're going as though the whole thing a redo it is as you wipe those out and you'd say we are entitled to will show what what what went into the what went into these accounts and maybe even if and this is our guest and then throw the ball in their court show that it wasn't that that it was reasonable and as reasonable and necessary that's the way it should be that's the way these trial should all be and unfortunately five of them were all done under the pretense of judge whether exporter in the state court judge mccollum had warned before he passed that with respect to all five he was going to constrain the trustee from putting on the evidence to show exactly that ok and then judge markets even it acknowledged and here's i suppose that if you know secrecy of judge markets is ruined because he was trustee should get a fair shot at this yeah my only question now is whether you made this very clean very plain to judge arguments that this was your position and that i mean it's obviously things get refined as you think about how to appeal and on the record there is some where he err really and where he where where the fact that he was airing was was brought to his attention on this point he didn't air your honor on this point with respect to the transfers and how we should have been able to look at the transfers of the five points and he focused just on those five issues you know and and then decided them he didn't the way we just described it wasn't attention i believe it was and i think that is evident by his ruling i believe that what happened here is markets will go on calling an inadvertent diversion judge markets has now sent that's not the law of the case the trustee should not be sanctioned the trustee should have been allowed to put this stuff in but judge markets didn't see that it would make a difference if we did put it in and so he ran with the five categories thinking that was the exclusive list of categories when it's not what we won't know let me ask this is there anything wrong with the five categories don't those five go to should definitely be so i think you want to amend your response to judge walker because you're not asking to reopen all of that well i'm assuming that when you're going to say reopen that we're not throwing away all the evidence certainly the evidence is no no no no i understand that but i guess for just a this is saying is are you saying there's more than the five categories there you don't and we recognize that there might be and that works against us yeah that clearly works against us there may very well be and again i don't feel that anyone should be constrained when you say works against your i'm not sure which you rich are saying nor mud because what if they raise additional defenses where they could show that some of the one point two million dollars went for more than just these five necessities maybe seven assess that he's right but but you're not you don't feel you don't want to be constrained by the the monies that were spent on these these these items so you're would like to have you know that you're going to start from a different premise you're not going to start with the money to spend on these items you're going to start with all the money when it is correct and we believe that even with respect to these five items we might come out better than we did so even if you were limited to these five items the defen limited to these five items we know that if we started on the premise that one point two million dollars is our starting point and then we subtract the money that was spent for actual necessities rather start one point two million so you wouldn't you would recover i guess under your theory automatically any cash expenditure any a t m withdrawal you would get that automatically  would a defense let's say you have a bank statement that shows a three hundred dollars cash withdrawal from an a t m in downtown pittsburgh on x day two thousand  you really think somebody could come in the court under oath and testify about what he or she did with those three hundred bucks that's why it's not our burden our burden is only to show the trial so you know it's real yep there they have their stop even if even if the spouses made a two hundred thousand deposit into the account two days before your submission is those three hundred dollars taken from that a t m we get that it's not out of the realm of reason someone come in and testify that i spend this much money on groceries for a month that i spend this much money on insurance premiums for a month that i spend on what i'm talking about will be three hundred dollars taken from an a t m and then you've got to grandkids with yeah and you're buying an ice cream cone and so if you look at it we look at line item by line item yes it might be difficult but it would not be difficult to come in with an annual expenditure showing what their necessities are that's not that difficult we all budget we all of these quick books or where you know we use some other type of budging to know whether or not we're going to have money in the year a fair tax is it's not that complicated and when we're talking about necessities it's even less complicated because we don't have to know how much money went to fuel the boat so by the way i soon i haven't looked at this closely you know how much of his wages went in so account and i think the bankruptcy court there thought that that it was just as likely as not that that money came from not from him directly from her and then as far as the retirement account was concerned that that never went into  account that was just came right from the employer some yes there were two categories of that but yes some went right from the employer yeah but it didn't go into the joint account and none none of the monies went to the join largest under under that theory unless we throw out the whole thing and make everybody come back you're basically saying that if there's a retrial of this whole case based upon your your theory then these other various rulings would would still be like a i believe that's right as in an individual items those are legal arguments that were not challenging and my only real question is in use at least if you challenge the approach in of the bird i've got to deal with this in terms of the background obviously the predecessor to the trustee tries it which was a commercial landlord of a partnership which mr our big ass was a member had filed suit obtain a judgment in and there's numerous references in the record about dozens of bankers box filled with thousands of documents going back over a decade as part of the asset discovery process and state court to provide the information to try to calm the commercial landlord so this is not a situation where the information regarding the transfers of the the income the wages was squarely or solely within the possession of  that the creditor had that information obviously shared it with the trustee fast forward to the bankruptcy filing of mr armey guest and then fast forward to the removal of the stake or fraudulent transfer what we asked was tell us out of all of these documents and everything that we've provided to you you can look at them tell us what you claim to be the fraudulent transfers so that we can go on and put in evidence asked the trustee to say what was what was what was forgery and then if the judge did that and the trustee responded to these five categories then i say assume that your argument would be that's what that's that those that those are the parameters of this case because what the judge didn't in a vacuum told the trustee you cannot allege these various transfers as fraudulent what happened was in response to our motion for a more definite she claims to be fraudulent and those objections to which she goes exemptions to which she continues to maintain an exemption and those records eight tell us that she basically changed her mind about about that is that what happened here because i think what you just said i sanctions on the basis of end to end to go that route your honor would have involved going through as i mentioned earlier the thousands of pages of documents you know predicate card receipts a t m withdrawals checks what we should title to change your mind went into a consent case management order and the second thing that was it's also clearly in the record was a evidentiary stipulation on the first day of trial october fourteenth two thousand and ten at the outset where the discussion was held process of going through the trial rather than going through the tens of thousands the trustee would introduce is it his or her exhibits identifying you know their evidence in support of the claims of project transfer they would have their offer of proof and then the and take a stand and try to defend the exemptions and defend the transfers is not fraudulent this this would help me share your answer to this i think would help me imagine carol factually not this case but imagine that over four or five years his wages went into the entireties account and never came out nothing ever came out not even for necessities or not even not for anything we have a fraudulent transfer i would submit that you do not because they were not used to purchased either and let's not forget about the organ either luxuries were none the ceci but what do you say you mean if he's hidden wages in quotes he's put his wages she clearly has no no interest no protectable interest in his wages from the firm and he's he's basically just put his wages a form that the creditor can't reach or use as it is your hypothetical that only his wages are put into that are other funds as well it's an entire season and to the extent that misses are biggest put in her separate assets her separate money then arguably he's she contributed to the marital state ok but leave those aside because that's not what we're talking about we're talking about his wages that's what that's the issue here right so the question the judge davis asked was the simple fact of putting those in entireties account you say i and then those will not be counted but the rest will be and the r b s put on testimony with regard to what they use the money for and they also testify there's also some testimony although not a great deal of testimony about the extent of mrs r b contributions to the marital estate from her separate asser separate funds or i that goes to the question of reasonably equivalent value he put in his his his his wages into the into the joint account right she also put in her separate assets so to the extent that misses are big assed put in her separate assets there's a couple of cases in related cases in the bankruptcy court in this in this matter from some of the other partners that there is a corresponding reduction in the amount of the claim that it's not a fraudulent transfer unless she didn't contribute i just i'm not getting that at all it's the it's the constructive nature of him receiving wages in a the law firm into their joint account period and then you take out necessaries for the but the fraudulent transfer itself the universe of it is she contributed to the marital estate and that's why it's relevant in this case because there was a stipulation of the parties entered into to allow for just that type of evidence to go when after it was  she's not the debtor it's not a fraudulent transfer my point is that it goes to reasonably equivalent value received by mr our big assed wife or his deposit into want was that we were does it have to do with that hit him for his deposit it seems to be he puts money into the joint account removes it from the creditors she isn't doing anything she just is contributing to that account and then and you could have ten other people contributing to that account too and that be fine too if they felt like it but but but the real thing we're focusing on is what he did what his contribution was into that account and whether or not he got value back with that money that he put into the account not in terms of anything that anybody else put into the account but was it for reasonable and necessary expenses or was it for a purchase of a car which he got which isn't part of the bankruptcy estate or something that's its value to the extent that the funds that mrs server guess contributed to the merrill saper used to satisfy mr our guest obligations that's the value he i think i finally get your point and i think i agree with that but i think i get it is that your argument that he puts in one hundred dollars she puts and one hundred dollars and they expend one hundred fifty dollars to pay the light bill your argument seems to be that he gets credit for the first hundred at least in the first instance on what goes into the account and what i think we've been trying to get you to address in a way that we clearly understand it by is why it matters what she put in because to the extent to the extent that her funds were used to pay that obligation and yes he had that's the benefit to him that that dollar how could we possibly know whose funds the funds is a fungible well that was one of the issues we present our appeal in the sense that we didn't get the opportunity to show that that's our cross appeal as far as the pretrial evidentiary stipulation is how the parties were going to proceed we're going to proceed to identify number one what those fraudulent transfers were which the trust ultimately did after or much effort then once the court made the ruling if a court found that there were no fraudulent transfers then the dollar amounts wouldn't wouldn't be wouldn't matter because there would be no fraudulent transfers with the stipulation  involved now that's why the parties entered into the consent case management order saying trustee identify these and yet area spoke parties are here complaining about about not having been able to vindicate what they thought they were arguing for that case management when i just search you sir we were permitted to do that well that the stipulation that i'm referring to was not in the case management order but it was on the record in front of judge mccall they saw a case manager or based on the base of the case management that's just correct here i understand that we filed across appeal based on the issues we raised that we thought had merit and that included you know the evidence or a stipulation which allowed us which would have allowed us to introduce evidence our biggest contribution not just for the acquisition of a couple of the at assets you know the florida house wasn't was anything for her money as i mentioned earlier there was one item on one of the club memberships right there was there was evidence that for the acquisition of that you know some of her money was paid the initiation but its claims are you finish or finish but the claims that the trustee was pursuing also was the continued support and expenses and maintenance of the florida home and the continued expenditures on the club memberships and how mr armey gas used club memberships and there was no evidence no effort no opportunity provide evidence as terms of how much of mrs rb guests separate assets  side says it wasn't our take it that your reason your reason for that is that that was in effect the what the parties discussed before judge mccullough right and and also i take it i and following up on the the simulation or the the agreement regarding the four years that was not in a vacuum either because we had a situation where the tries to con through its pittsburgh council had after the bankruptcy had been filed had written a letter to just what dick and this is also on the record as well asking for a striking of the discontinuous without prejudice and reinstatement of the action against mr are big asked because as you recall from the record mr our guest had been excluded from the state court litigation as a result of the superior court decision absolving him of liability which the pennsylvania supreme court reversed the problem we had was that the tris a con had asked the judge w for his benefit alone and therefore not fraudulent i don't understand that argument it seems to me that could be a question here is whether those expenditures were or were for no necessary items and that a club membership is not necessary well artist who benefits i said i also said a case in my brief identifying what constitutes expenses were not and the club is not for reasonably and reasonable and necessary household expenses even if it you know even if it's for his benefit it's a luxury it or not a luxury but it's not  the club but she derive no benefit from it and she was not at all the sort of doing it so the point is no the reasoning is that i'm gambling to las vegas for week and she wasn't involved at all that would be the same issue with all the for his benefit and you i suppose and you'd have to argue oh well somehow that since that was for his benefit it was it was a reasonable and necessary household expense to go to las vegas and the reasoning is to put it impose a liability on mrs our biggest simply of the not necessary expenditure has to be for the benefit of earth as well as him that's that's her position here i see so that if he did take the money out of the joint account and go to las vegas for a week and blow it all to the tune of one hundred from from a standpoint of we have here well except that maybe he's doing something to hurt her maybe it's not so much creditors ory anyway i see that my my time is up now i think if you take just thirty more fraudulent transfer act as the party asserting that the the asserting the transfer being fraudulent has the burden of proving that it is having said that the army guests under took that burden on their own anyway they're the only ones to put in any testimony i understand that  but why doesn't comments that cover the situation of the funds going into the entirety and as i understand the argument on the other side it's actually silent on the actual bird approve as to  that stuff so the burden of production was your that's all you meant by that's correct and judge or just mark of it said that he would impose upon the orbit of our guest the burden of going forward with some production of evidence well it doesn't matter if we accept the trustees theory because he would wipe out everything that's happened and go through seven thousand pages you go through seven thousand pages and they would they would prove all the money that went into the account saying that the project transfer and then say you show us what was necessary and reasonable expenditure out of that and and put the burden on you for that that's what that's that's that's where it matters and as a matter of rule that way you  through explain what happened that forty bucks and as a matter of case management that's precisely why the party's image that joint stipulation for case management order that's why they went to the internet the stipulations in front of judge mccullough to avoid and waste no qualms about it with the stipulation was not entered into because we didn't want to bother the court the stipulation was that it into because a judge when it's ruining and judge mccall is believe that that ruling was precedent in the case that's why the stipulation is entered into the sausage it involves the where is not the where does that where does that help you it was a stipulation it was agreed to signed signed off on based on care what what the what the prior basis was and whether it was correct incorrect or whatever if you didn't like what he was doing you wouldn't sign the stipulation but you did sense that what judge that is said and we have to read the entire political we he said that he was stipulating to the fact that the presumption was the record created today would be supplement of the record from october fourteenth fifteen with the understanding that everything that occurred prior to that point prior to the trial remains a matter of record because there were stipulations he's acknowledging the fact that judge mccall it was still working under the pretense that judge whether it's ruling govern the case and here's how judge markets address that because the court agrees with the trustee and tries ik that a certain portion of the applicable law that must be used to resolve the instant matter was indeed misstated by such predecessor judges and since the confusion that ensued as a result of such misstatement has not been cleared up until now by the rendering of the instant opinion the court cannot see fit to monetary sanction the trustee in tries it for trying to put that evidence into the record did you sign a stipulation that point is referred to by your adversary or enter into a stipulation the stipulation was not a was not a consent to the law the stipulation was just simply trial in terms of the proof that was a stipulation that you entered into if you didn't like it you could have you didn't have to enter into the stipulation oh it was required at that point by judge mccall if you agreed with what the what with the interpretations that were going on never agree with the interpretation did you reserve did you take out an exception the stipulation is not anywhere suggest that we agreed with the interpretations and say does it indicate that you didn't agree it does not ok but it is not a disadvantage and at that point what was the trustee supposed to do go before a judge or call and say i don't care what you think here's what we have and so we in fact tried something almost to that point and the trustee put before a judgment call  there we don't get to use the discovery was there for everyone to use we didn't get to we didn't get to even try and satisfy our burden when w show what happened to the money effort when the entire disk out when you when you as you say you weren't looking to please the court why don't you just come in with your hundred eighty nine pages why did you even create the five categories we did we did of story got i'm sorry i don't think we have a right to appeal at that point on a trial having a no no you could have you could have offered what you you know how trials go the plaintiff offers their case the defendant offers their case there's a judgment and then there's an appeal if you don't like what happened and that could have happened here without a stipulation judge we don't we're not going to enter into a stipulation all right is to offer everything that came out everything that went into that account at rest that's what we're going to do i'm sorry over ruled he orders all sorts of different things and then you appeal that's exactly what happened yet you entered into a stipulation that was way before we try to offer that way before we before they leave here to the stipulation your honor we offer that i'm going to to address as walker's i'm missing something because you don't seem to be responsive to this point well going to i maybe there's some confusion the timeline the stipulation was entered into back when counsel says he got his motion for more definitive statement relative to the right complaint that was months before trial right on the day before a day off or right around the trial date all the exhibit points were presented to judge mcculloch and it had everything in the context of the prior stipulation no no we gave him everything i see you said sorry judge the price to collation doesn't apply we're now we trying this case the way we want to try it we believe that those documents were would you accept that no you wouldn't accept that no your honor it's consistent with the idea that all along this is the way we felt a fraudulent transfer case need to be tried for why did you create the five categories what you just said it seems to me is quite inconsistent with the idea of creating five category and litigating in arguing before the court those five categories it just seems to me it's not exactly a intellectual gravity certainly not that but if your position is we rest on the hundred eighty nine pages and now it's their burden debtors burden to come in and show that some portion of this one point two million dollars that went into this entire pizza are not subject to recoup it by the trustee seems to me that's what you should have done but you didn't do that you can't try half a case the way the judge is interpreted the stipulation and and put documents and so that you can come to an appellate court and say well we don't really want to do five categories in the first place he made us do it we've got i'm not getting that no you're right right he made us do it those five categories were not our creation but a court can't make anybody introduce evidence and a court can't make anybody insurance th you ation the five categories where the only ones that we identified the dated stipulation where we knew based on the information that we had that we were dealing with an issue of necessity supply in fact but never does it treated that as an acquiescence in his interpretation yeah he was not liable based on the timing of the lease he had left the firm that point x and so he was not one of the defendants he was however named in a subsequent case  if i may just a last point here thirty seconds if if the hundred thousand dollars was in an individual bank account and he went off to las vegas he'd never get on a plane because if it wasn't in visual bank account we'd have