morning my name's k c ny i'm from law from waterfall kind of latest in tucson arizona company which is the debtor in chapter eleven below and the appellant for this course as you know the clients appealing the bankruptcy court's decision step into some of the factual findings some of which affect both plans but primarily relate to my client's plan of the organization and take them in particular order three fat questions about three hundred and fifty thousand i believe it's pretty straightforward one ventured secord supplied the wrong legal standards to the best interest of creditors test as to the debtors as to the committee's plan of reorganization as a preliminary matter that several other creditors that rejected the committee's plan as unsecured creditors as well as up we read the statute once the best interest of creditors test is implicated the bankruptcy court  found that my point plan did not satisfy right and in part of that's been me that's largely based on her determination that you know call it whatever you want to call it rough justice whatever those insurance proceeds are going to generate about  liquidation of the liquidation there was evidence in the record of forty seven percent from their expert plus some other factors which is not far off the mark from her forty eight dollars that she found on  what she applied to my client plan with the bare minimum that my client promised in terms of minimum distributions to credit ok as opposed to what i suppose and the biggest difference in this case from a factual point of view between  want to i want to just focus on that paragraph for just a nd because i know where you want to go when i've read your brief and i understand your point on that you can certainly argue it but yes it is not fair to say that what she was saying in that paragraph was you know i've done the searching analysis of the chapter seven trustees liquidation i don't think the committee would do any worse so my number would be forty eight  and there are a number and basically if that is the rule then i don't i don't understand how that could be the rule because if that's the rule then how would that basically be a pass that i have seen in the statute or in any other cases d where on even storm she was under some obligation to make a factual finding about the numbers i mean had she maybe one day said look this is all kind of rough justice and there's not much room for in forty eight and forty seven seven that would have been a different question as one could have argued about get herself from up with numbers that are you know her sense of what the right number is given by all parties positions if she's going to come up with a number that neither party came up with she really has a greater arguably even greater duty to justify two for the committees plan and it's awful darn close to the number that she's come up with for a hypothetical perhaps i mean it's not a given to me that chapter seven liquidation would have  clear yes ok so because his testimony was specifically that without the principles active participation it in obtaining the crime insurance her active knowledge what what it would take to do that and is it so that's a question i'm a want to question number two is you know as judges we've done a lot of these cases so we do brain in fact personally submitted claims and generally even a lay person is able to testify about their their estimation of the value of their collateral if you will and what smith does say it could be this it could be that she makes no actual finding with respect to two to that and it appears and there it is and there's no reference on this extensive reference to the records there's no reference that you affirm judge when there is a pinion confirming the creditors committee's plan and denying confirmation to the debtors point i want to jump to the last issue you were just discussing with mr knight because i think it's actually easily addressed and then we'll jump back to probably the the meat and potatoes if you will of the liquidation elsa's so mr knight is arguing that essentially judge wintery did not take into consideration the t estimony of david leonard that shannon by the principle would collect more of the crime insurance proceeds i want to point out a couple factors the court found specifically in extensively that shannon pot was grossly incompetent that she committed managerial fraud that she had failure of overshot site to failure to file timely reports she failed to file accurate operating reports she violated to direct orders of the court and i'll get into that more but those are big orders she failed to collect the accounts receivable from herself her related entities she set up with her hunch has been that the court found or set up to avoid creditors collections so judge wintery made extensive she thought she could do better than that i think most people think they could do better than that and then as i briefed terence in a brief david leonard is not an expert nor forensic expert i think as i think judge taylor pointed out and we argue that well there i think factual matter you know if there is a basis on the record we're not going to we're not supposed to nd guess what a bankruptcy judge does a confirmation and that's a clear error something entirely different so that i understand that part you know part of the problem here is she she did what everybody does a confirmation which is kind of some rough calculations and came up with a number of three hundred and fifty and that sort of leads to some further problems so i'm not suggesting that you know this would be the st time a judge said i've got to do this calculation myself and here is what it is and i'm not suggesting that i think i'm hearing clear here because i i'm not quite there yet but she does come up with a very specific number that has the effect of being a creating a could have argued with him but he's not here to argue yeah fair enough judge laughter the but you know it does look arbitrary but what you have to look back is the factual record and why this occurred the confirmation was supposed to occur in two thousand and eighteen you got delayed for honor i think is the meat potatoes of this argument so i just don't she apply it under the liquid to best interest test so as the appellant points out you know she does five and a half pages of argument and then she goes to quick paragraphs and i want to address two points that were raised first you now says on the debtor's plan she gives and we're judge taylor points out she says ok the debtor comes up with forty percent we have this arbitrary forty eight percent number now that's not based that's based on the best showing of the debtor i e that's just their plan language they get to forty percent that's not taking into account all the testimony and  exhibits that were presented to judge when they reviewed to get to forty percent that's their best day and they only forty percent so then you get the forty eight percent and that's is that arbitrary i tender it but number not a problem for you and let's assume that the forty eight percent for the chapter seven for us the liquid ation is rock solid and that is not a problem for you there is no judge taylor early on i have it in my notes what you have when you are saying is a liquidation is a liquidation is a liquidation now let's break that out so she comes up with the forty eight percent number how she gets that i think we've got to look under you know and i don't mean to do this but we look under it is not a day noble review so do you have a strong conviction she was wrong it is a factual finding imrie arnold and  were clear on this i disagree with counsel that there's a de noble analysis but let's talk about it so let's talk about practical implications so she's saying judge wintery saying this is a liquidations a liquidation so let's look at it what are the duties of a chapter seven trustee in chapter eleven trust they're more or less the same lender letting us see seven o four and eleven o six now the most important point which hasn't been fleshed out and i have to raise before getting this is there never any evidence presented by the debtor ever that they would get more than a chapter seven analysis they never present any evidence that a chapter seven trustee would recover more than me john smith the chapter eleven trust there's no evidence now the only difference in this whole thing is one of the process the procedure an orderly liquidation versus the hypothetical fire sale that that and by the way i'm going to i'm going to connect the dots for one other thing when she says implies that well maybe the committee does not as well as the gutter i think that you're right i think that's a little apples and oranges in terms of you know how critical she is being about one plan versus another so that that didn't stop me in my tracks necessarily but i am stuck with you know the difference between findings and war i mean you're i'm not disagreeing generally what you're saying that chapter seven trustees do liquidation liquidations and they kind of look the same but i mean doesn't a seven require to do some minimal work to show why this it's a seven or not judge laughter i think we're getting caught up too much in paragraph one and findings is based on the five who have pages of liquidation analysis plus the testimony of our expert missile belsky at trial that test extensively that although she didn't submit a liquidation report she testified about liquidation we have george cunningham's expert report that judge wintery took into consideration when she wrote this summarizing paragraph this isn't the extent of her findings the whole thirty six page page opinion that our i don't know why she wrote it this way and i don't think you can say it isn't sort of mind bending to say a is greater than the c is greater than  b but might be less than a but you know there's a there's a flaw in the logic here if we lined up the findings they just don't mesh and i don't know you know if what we do with that and that's what we're really searching for here so you're suggesting that beyond that summary finding what would you have this look at to to come to the conclusion that it must we must disregard the confusing language and  notwithstanding that she said it might be something less than something she already said would bring in less than or chapter seven liquidation that's the problem ok i don't have a specific record but you also have to take the thing  a whole so whether judge when reduced you said there are seven hundred thousand remaining more or less and the committee's evidence isn't very great on liquidation value and the debtor's evidence is so outdated and not very great on liquidation value eventual i'm going to opine on all those footnotes that judge whether it puts in from related to her liquidation schedule is the basis that she uses and she basically says you know i heard the testimony from x and y and i say you know i discount this much and i give it this value i looked at the debtors plan i looked at the committee's plan and i give it this value it's based on her experience from sitting in trial and she puts pen to paper and this is what we get and i think ultimately sorry your hon i get all that how do we disregard the statement that you might get less and under the debtors play and when the debtors plan was already found to be less than a cat a seven liquidation it's a and you know help me i can i will gladly help you and you know the language is it's not the best but i think what she's what judge wintery is really saying there is that debtors plan as they state in the beginning gives us their greatest thing they can do and remember that is you know one hundred and forty thousand new value contribution which if you go to the record never came in so they lose on feasibility which i didn't address but sorry  saying if their plan came to fruition their plan will never come to fruition and a judge addresses that why will their plan never come to fortune for specific findings they have leases terminate which is the majority of their income and therefore they have no alternate source so it fails this is under her feasibility analysis but it also goes to why if you took the debtor's plan it could generate more she does not mean that i think what judge wintering means by that sentence is the committee's plan as compared to the debtors plan were brewer would generate more or less if they debtors plan fully succeed which as she finds in the  take the whole in this and when you ask when we have a trial judge do this extensively findings and remember these are you know bad people this judge found bad oh ok you know that's ok you know there i think what you're saying is we can we all have done this and we can hear a tone of irony in what judge wintery is saying about the committee plan versus the doubters plan that you know she's taking at face value they're going to get forty because i don't think they really are right that that's the point ye i hear everything else that is being said about this and i think it's a little confusing and i'm you know if you think this is and if that wasn't as a matter of law kind of determination tell me why because that's you know every arnold this is a factual finding your honor that's an interest and it in relation to achieving a result on the crime intrusion and to have just simply omitted any reference is not as if he even said hey i looked at this testimony i didn't find it credible mr smith would have it we would just imply that that was not credible and it's unfortunately this witness was not available at the time set for trial so we had to go forward with the deposition but it feels it just feels unfair to me that there's any other questions that the court would like me to specifically address i 'm happy to do them but the the the reality is that my clients for all the disparagement of their character throughout this case had increased the cash from the center from a one thousand dollars one hundred thousand dollars by the time  that a minimum that this be returned to the court on that issue for the judge to address in or finding out how that relates because all of the testimony goes directly to that finding and to have made is that entirely problem if she wants to find that he's not credible or not an expert when if perhaps she does that that's not what she did she accepted the testimony and then just didn't consider it or didn't address it at