court's decision to apply an equitable doctrine that results in anything but an equitable result the court applied the doctrine of equitable mootness to determine that the case should be dismissed they relied upon a very strict stringent standard of a significant point it is your honor and the point of that is because it is an equitable docked in the court is trying to say if you don't file the stay on equitable things could occur which leads to the other test as far as i can matter are not a lot of different parts there are not many parties to this plan correct or correct so what is it how could the plan be written to address the issues that mr little raise your arm to to begin with the plan could address paying out of the parties more equitably and could revisit that mr little who is the primary creditor in this matter receive twelve cents on the dollar whereas every other creditor at least third parties that if this court could fashion any number of remedies and then we're going to fashion a remedy will be the bankruptcy could bankruptcy court if it was remanded could fashion any number of remedies including creating a specific exclusion although we don't believe that would be necessary but creating a specific exclusion from clawing back for certain third parties who are truly third parties the problem is that most of the parties who are not actually third parties and in fact there are other parties who are never given notice of the bankruptcy proceeding in the first place let me ask you i thought it was kind of interesting that a one point two million dollars judgment got reduced to what do the valuation process  however the bankruptcy court decided to confirm the plan before the report from the in to examine or was completed and provided to the court to determine that and in fact that plan found numerous discrepancies in fact found three different sets of books that schedule d these insiders listed only half of their claim as secured and half is unsecured yet the plan itself listed all of mr post's claims as secured and paid out mr post in excess of two hundred and forty thousand my understanding is that amber is an ongoing concern to have you heard and i think the organized they believe that they cut whether or not mr little is able to obtain one hundred percent recovery or not is not really relevant to whether or not the money that mr post as an insider action on a contingency basis agreeing to accept a percentage of mr little fees that's why those numbers are broken up the way they are and that's all that they receive their fees so they actually have paid either the reason that they are creditors in this action is the same reason that the franchise tax board was listed as a creditor and was allowed in fact to vote on the confirmation plan they stood in the same position by having placed a lien against mr little's proceeds however unlike the franchise tax board those other creditors who are in the exact same position their basis for being a creditor is because they placed a lien against mr little's recover as did the franchise tax board yet those other creditors were never given notice weren't provided a chance to vote on the plan object to the plan file a claim under the bankruptcy reorganization in the first place which in and of itself is a rather inequitable resolution to a matter that is now again honor because once he secured once he registered that judgment that actually creates a security interest against the personal property and real property for that matter of amber in the debtor so two days later when mr post decides to issue that loan to so the again to the inside of to its own company those funds that were distributed were in fact funds that mr little already had a secured claim on those should never have been transferred in the judgment the record of judgment into a lower class of creditors that's what happened here right that is what happened your honor whether or not that was appropriate or not i don't believe it was but i do believe it was within the b project in this case the district court properly applied the four part test from four and found that equitable  applied and dismissed the appeal and the primary reason was the fact that no stay was sought almost three years after the plan was confirmed amber move forward did everything that it was supposed to do to implement the plan third parties that are not before this court and i'd like to correct the record that my opponent was saying that mr post the insider has been paid that's just not true it's not called for in the plan and that didn't happen mr post claim is specifically subordinated to all unsecured creditors and he has not been paid on the other hand seventeen creditors other than mr post have been paid and none of those parties are here today before this court so when the district court looked at those factors and compared them and decided where should the equities lie in could in effect in remedy the fashion short of knocking out the pro plan and starting over again it concluded correctly that nothing could be done other than what couldn't you reclassified the the status of the unsafe of mr little's secure judgment  mr post unsecured note or whatever it was he got back from and just flip it around well that's an excellent question your honor and he here's why that can't happen because that would be a collateral attack on a how you treat this little let me explain why that would be a collateral attack because it's a different order we filed amber filed a motion to value personal property and to determine the amount of the security claims that motion which came on for hearing at the same time as the confirmation hearing was posed by mr little and as a result the bankruptcy court consider exactly that it considered miss your post secured claim and determined that it was a valid claim prior to the judgment lien of mr little not only did they not oppose that motion but they didn't take an appeal from that motion so as a result with their asking you to do today  pose three years ago and that we didn't take an appeal from that's not proper that when the when the valuation motion what is it what exactly was valued all of the debtors personal property declaration evidence and by the way in this exam or corporation yes or and the actual motion is set forth in the record it's at three seventy as it is the order approving the valuation that's of the record twenty eight and so the court considered based on dec wrote declaration testimony what all of the assets of damper consisted of and looked at the lenience that were against those assets and it's based upon that motion that the bankruptcy court then f mr post had a partially secured claim partially unsecured claim mr little had a fully unsecured claim and what the plan did with respect to mr little's unsecured claim is it subordinated to all other creditors with respect to mr little's unsecured claim that was just part of classes that this is so the incident of the recorded judgment was not anyway secured within the meaning after he came later in  hotel is still in business today your honor yes but yes it is still in business today it's a it's a company that deals exclusively with selling hotel sometime recently person services business go but the  before which is could we rewrite the plan and the statement was yes you could rewrite the plan to pay out more money to the creditors well again that tax one of the fundamental props th was based upon which was the analysis of the debtors financial condition evidence was presented at the confirmation hearing which was not opposed by the appellant and we explained based upon debtors financial condition historical and projected as well as the unemployed motion to determine the amount of the property that's how much the debtor should have to pay out and those components of the plan were not opposed this is when another consideration that i think i read in the briefs was that the bankruptcy court on a reduced to me were to get go back for that and they would prevail on their appeal why couldn't the bankruptcy court require mr post or require an additional contribution to the estate so start went from fifty thousand to one hundred thousand wit hundred four thousand and forty and one hundred four thousand and that was based upon an unopposed appraisal that was presented to the bankruptcy court that valued the enterprise value of amber hotel corporation mr little then agreed to contribute that hundred four thousand dollars and again that valuation was not opposed by mr little at the time of the confirmation hearing so it's nice that now three years later he wants to come back and say well should we try to force the other to spend more money but the point is he had an opportunity to do that and didn't take advantage of it nor did he present any evidence to suggest that what amber was paying and what mr post was contributing was not fair reasonable or equitable it was exactly what the declaration evidence presented to the court required and that's what was paid but the other point that i wanted to come back to your honor that i heard was  that this is really just a two party dispute or there's very few parties here that's not true there are over seventeen which money has been paid out today almost three hundred thousand dollars your honor it was about seventy something thousand to the admin and priority creditors and another two hundred for two hundred eighty thousand to the unsecured creditors and at this point the plan is fully consummated we've made all of the plan payments there's nothing left to pay  gets nothing no well the franchise tax board got paid on behalf of mr little because they have a priority lien on his claim on his corn yes but they didn't pay it now which gets to the next point which is is it when you say the one other quick point there's a reference that the posing counsel made to these so called non noticed creditors and there's two points that i'd like to make about that one they showed up that con the  day of the confirmation hearing and we explained to the bankruptcy court that these made the creditors of mr little but they are certainly not creditors of ambers a state here's the two points one mr little did not raise that objection at the bankruptcy court he did not raise that objection to the district court and those creditors have not appealed so i believe that that finding should be complete at this point if they thought they had been wrong they certainly could have come before this court and they have your honor your honors simply put we believe that the district court properly applied the forepart that's how you try to protect the interest of the third parties as a result since no stay was sought amber did what reorganised ever should do it moved forward and confirmed its plan fully consummated its plan and third parties reasonably relied on that confirmation order at this point we get to the fourth factor which is is it practical and equitable at this point to go back and make amber start all over again and the answer should be our thank you thank you thank you for consideration or so i think you have a little bit of time for re in no particular order here on earth the franchise tax board was listed as a creditor they were not paid out as a lien holder against mr little the franchise tax board has given notice and in fact voted on the confirmation plan the debtor themselves recognized that that lien that they had creates the voting rights in a right to notice there is absolutely no distinction in the position by the franchise tax board to these other creditors that were  the franchise tax board was given an opportunity to vote on the plan and object of the plan these other creditors were never given any such right and while we're not here to to stand in the shoes of those creditors to raise their claims it does bring into a star question whether or from the independent examiner and that independent examination would have provided mr little with the ability to raise the objection and in fact on the day of the hear of the confirmation plant they requested a continuance for the purpose of being able to provide that information to the court short of doing that they would have provided an objection without foundation and that's why no no objection to the appraisal value was raised at the time because to do so frankly would not have been good  on the part of mr little that is the appraisers information and that information stock during discovery which as noted in the brief by mr poston self at best played games with his answers in providing that they waited for otherwise they couldn't properly provide the court with the information that would have been a substantive objection rather than just saying objection because we think there's something there and that's why the first if you're correct that the plans been fully implemented i do not etc as well as counsel themselves on the other administrators to the plant all these people had notice they're basing it upon the stand that it's been fully implemented but they already had notice that this very false not meaning to correct your honor the correct question there is why didn't his counsel it assumes that my client did not there's no question that best practices would have been to request a stay we don't deny that we don't refute that unfortunate that best practice