responsible for the cost and services for which it could reasonably expected to benefit and did benefit from the services of special counsel in this matter or reasonably expected to  for you bill for you to seek to collect for certain for work that was done to research potential claims against secured creditor services were rendered to ensure that the franchise was need to differentiate between the end of your financial services and your w north america you've either owned by the same parent company when we speak of b m w financial services we might be more apt to say bank of america or lender to show that they are separate entities we had to so you determine what's in the best interest of the lender now that's for the court you know this is a pretty good hint that what's the best interest of the lender what the lender thinks is the best interests of the lender not necessarily in this case why which is why this case is an interesting one through discovery  e mails and letters and correspondence had been going on for months and months and months between the n w financial services b m w north america and their favorite son lender the l s i as referenced in the br isn't it that after notice and hearing there was no objection lodged by special counsel to the carve out the left special counsel out and that right that's one regarding a special c feels it wasn't part of the fees under five a sixty which meet would be separate and apart let's just focus on this charge if you if you had your opportunity your noticed there was a hearing no objection how how how was there any basis to come in and say wait a second they really were consenting for me doing what i did they told you they were they had their carve out you weren't in it and you knew about it how does your consent argument hold well i wouldn't say that for the fact that we were included in a card that would mean i didn't consent our services i think those are two separate issues i think that they did consent to our services my allowing special counsel to continue this is the carve out specifically i mean what's the point of the carve out except to say this is what we're willing to pay for and you're not in it i mean that's the i guess i'm having a hard time understanding how how those issues are as separate as you're counsel jumped up and argued at that point that you know we are entitled to feel under this card out and hold up the sale at that point they could have been held responsible for losing four and a half million dollars over the fifty five hundred thousand dollars  worth because there was there was a notice of terminations it was issued by b m w to say the franchise in this particular property will be terminated within fifteen days of july twenty fourth two thousand and nine so but for the services of special counsel all that would be  south would be the facilities at that location which are single use facilities the blue sky and the value of the franchise are what at the end of the day everybody was arguing about your  got to demonstrate that the expenditures are reasonable and necessary to preserve for the preservation we're disposal of the property and that the provided direct right that's the standard those two prongs ye no so do you have any proof at all that the preserved property here which the collateral was the cars in the land right the inventory in there are e mails and letters that have gone back and forth between counsel for the favorite son buyer in this case and mr margolis prior to the conversion were negotiations were being had as to what the property was where and how much you know a letter of intent was issued and that definitely speaks to the value of those assets and again the majority of the funds are stemmed from the franchise itself which wouldn't have been and what is the issue that is the position that you've got under these circumstances that that it's really it's an being argued is hey what happened here is is unfair that can you can you point is that something specific as to your equitable stop learned quickly that was either a representation that was relied on or a special relationship that allowed this remarkable is to trust in the silence of the lender short of what i would point out would be that at the time of at the time the services is misleading the lender in this case said ok great we have a sale for six million dollars but we're not going to accept that so unless you get a nother entity to it unless you sign a release for any other entity which is in breach of the motor vehicle for the state in new york i'm not understood i'm not sure i understand how that plays into equitable stoffel argument i can correct me on the law if i've got it wrong but my understanding was that the law required for an equitable that there either be a misrepresentation that was relied on or some reliance on silence in the context of a relationship where the party doing the relying was entitle to rely on  did you know that as in newspapers find buyers take an action in state court were preserved the franchise well all the while they had been communicating with an individual that they intended and wanted to purchase this asset at the end of the day and lately that might make them people but does that make them subject to an equitable stoppel i believe that it would because they allowed the marvelous life may continue making efforts to continue accruing fees all the while when it would have been moved and unnecessary  of five or six now your honor as a district court ably pointed out there was no benefit to b m w fs until b m w fs after conversion working with the franchise or and the trustee conducted a whole new process to sell the assets and in fact sold the assets itself so there was no benefit brought about by those additional third of this how could you know that's a curious thing to me because the the district court also said this on if you know the slipping in stock quote special counsel makes no effort to limit its claim for fees to only those actions which were primarily for the benefit of b m w fs well that's and certainly implies that some of what he  was quote primarily for the benefit of b of the v f s and if that's true why was it appropriate for the district court to say to the marvels offer you get nothing instead of saying them are goals law firm we don't get this much so tell us break this down in a way that we can fashion the appropriate for your war respectfully your honor i don't think that that's that that statement implies that there actually was any benefit to b fast only that mark that the marvelous law firm didn't make any efforts to prove which ones were for the benefit of a fast and the district court later went on to say that there was no benefit to us until fs itself sold the it's to point out your honor that in order to come before the court you should have at least taken that effort to see which actually activities benefited b m w ethic and you did it and without frankly the  from did not do that the district court's opinion and that particular statement may have been pointing out that the burden was on them and and it wasn't carried i don't think it was suggesting necessarily that there was any benefit will only give you some of your own words if i can or or somebody from your firm this is from the you know it's from breeze on despite being ready willing and able to liquidate the collateral of property given the offer from mr missin you know comma b m w f s agreed to forbear from exercising its rights under the orders for leave to allow the doubters a period of time to sell the collateral and property is that an admission that the offer from the stocking horse that mark olds from brought to the table prompted forbearance i think it's true that because there was an offer on the table and there was a representation that we could go ahead with the sale you know within two weeks i think about that was the time frame at the time that ok we well we hold back from exercising our rights under the order for relief and we will allow you to try to sell these assets however what that statement doesn't encompass there were very specific conditions of which special counsel was aware for a sale at less than the full value of our lien to go forward and for us to confer stood i know you you had releases you wanted it cetera et cetera but the point is they brought something to the table you accepted that that was something significant enough for you to forbear you your client obviously so and and in fact you did for  that have that have a cause as a consequence keeping the franchise alive did it not no it wasn't sure what to take from your assertion that they would have they were ready willing and able to at the time that the missing here was brought to the table as a stalking horse that or the franchise was at that time still alive you have a a better you have a buyer here before me i'll give you the opportunity to go ahead and sell to that  if you are able to sure but your statement in this brief is we were ready to liquidate we were quote ready willing and able to liquidate could correct your honor but we were still we were still significantly behind having a buyer in front fighting and they were fighting against that because of their impression i suppose that a going concern is better than a concern in liquidation right correct and i hear i think maybe is where there's a little bit of allowed the m w and they to get relief from stay that's the franchise or the franchise or what have terminated the franchise we have to have taken the position since the beginning and history before this position now that had we been allowed to go back to state court the finance company then allowed to go back to state court to reply via our assets and foreclose on the real estate we would have worked with the franchise or to keep the franchise the lives of the whole thing could be sold as a package in fact after the i'm not sure what to make then of your statement that you were ready to quote liquidate the collateral in the property liquidate the collateral in the property sure sounds like the end of the franchise you were well ready willing and able to liquidate the collateral in the franchise but quote given the offer from mr newsome you know you agreed to forbear that sure sounds like a statement that we were ready to let that x drop he brought something to people and we decided to let it live from the finance companies point of view for us to go and and liquidate the collateral we have to go back to stake or we have to get our replevin and then we have to find our own buyer right just to sell the collateral to we are in bankruptcy court now and we believe we could do that because we believe that any the franchise or our would work with us in not terminating the franchise before we found a buyer but here we are in bankruptcy court with that pending action with the franchise still in place and a buyer before us not three months of going through the reply been proceeding looking for our own buyer a buyer before us right he brought somebody to you and that helped you did it not no it did not because he could not sell the assets to that person where you thought it was enough of a help that you didn't continue with all the things you just said your honor it's sounds like on the one hand you're saying and he brought something to the table that saved us a lot of hassle because we wouldn't have had to hassle in fact caused us additional hassle now this is a chapter eleven case and i think it's important to point out that the chapter eleven case at its very best is a series of negotiations among parties the competing you give a little i give a little we work together and hopefully at the end of the day most of us come out with more than we might have had otherwise so in this case and this is this cooperation by the way that the fs agreed to with very limited we'll give you two weeks put together contract in writing put this offer on the table yet a motion filed and then we need to have a sale hearing by a date certain none of those things happened the motion i think the motion was file that the hearing was set according to our deadlines and by the way this is a written agreement where time is of the essence written in the agreement we thought about the times of the essence because there's an argument made by  mr dobbs for that that the work that was going on by the more goals from went on for a substantial period of time and you knew it as they put it you sat by and watched them go through a whole series of for us to bring in the stalking horse to find other bidders to see how much money could be brought to the table for a life franchise and that in the end you chose to to undercut that but that doesn't mean that what was happening was of being done in a way that was of substantial direct benefit to you and you should be heard to say having chosen at the end your own as they like to put it where that phrase go but that's the way they characterize it it's it's fundamentally unfair and inequitable for a bankruptcy court to appoint a special master and then let the lender pull the plug after watching a person expend months of effort hundreds of thousands of dollars excuse me and thousands of dollars in fees what's where's the flaw in that the form that we thing your honor is that we didn't you know up the boss on the sale at the end we told a special counsel and the debtor and everyone at the table and there were numerous in in chambers conferences in numerous hearings we told everyone at the beginning if you don't have nine million looking out for its own interests fs was looking out for any centrists and the trustee didn't even ask about the quality of the claims that were being prepared that would have enhanced the value of the estate and so you your you really shouldn't even listen to them when they talk about interest of wonder because there's not really an untainted lender here special counsel has made those arguments since the beginning of this case and i think it's important for the court to know that counsel for the franchise or b m w anyway was that every single one of those hearings every single one of those in chamber conferences and as i addressed on the record at the one of the sale motions counsel for the franchise or made those requests himself was more than able and more than willing to request release on behalf of any himself i requested release is only on behalf of fs and that is also reflected in the record in my moving papers my moving affidavit that paragraph fifteen we only requested on behalf of the us and he was more than capable of requesting their own release and they did because we're you know we were not hand in glove were represented by they also did research with respect to challenging a nine million dollar king reducing the six million there's no separation to that but with respect it's challenging the b m w claim this is why i believe this appeal all through a proper process has been frivolous first that supposes that special counsel most better than b m w and its officials in and executives that throughout the world negotiate these franchise agreements that they don't have the the business judgment wherewithal to make a determination as to whether or not they should or their argument in response to that seems to be we're not dealing with an ordinary wonder here we're dealing with a lender which is actually a part of an arm of the  the franchise a war and that the franchise source interests were to prevent facing tort liability for bad things they had done so it's this isn't this ordinary circumstance for a third party lenders going to look out for third party lenders interests this is a lender that's looking out for a bad actors interest that's the pitch i take it from them so what's wrong with that why trustee look into anything we didn't talk to someone right we have a sense of discussions we copious legal review all of the documents we talk to b m w we talk with their counsel we look at the documents and we felt at the end of the day that the best interest of this estate in these creditors was to do this sale and waive the releases after due diligence after trust these business judgment that was not challenge so to make that statement is offensive because we we at length we looked into those allegations i would say your honor that the other part of this is that the  that counsel makes an argument that somehow the trustee and b m w and l s i conspired to somehow cut them out of the process and i think that judge hayden in her opinion adequately addressed this and i kind of call it's really as a smack down and this is with respect to the stoppel argument special counsel cites no case statute rather than already indicate that such a point about the strict standards if i will succeed if the court were to accept special counsel's argument that these negotiations provided an equitable basis for the right to collect fees from the collateral the court would effectively had fairness and balancing  equities components the five zero sixty substantially relaxing the strict standards that the long posed to recover fees from the story assets why are we here today why my client filed a motion to approve the sale and we specifically request a carb out and i think as tom cruise would say is it was crystal clear the core about was for the trustee and his professionals they never appear they never sent in a letter they never move for reconsideration of that they never appealed that order so it's really the height of hypocrisy to now come in and say oh by the way we're entitled in the five six c their time in their day was then they've wasted our time our money our effort on emotional reconsider on any appeal and now we're before your honor there's been no basis and the records below clearly established that there was that it was that their services were not necessary not beneficial there was no consent and any of the third circuit requirements for that type of claim were not found your honor ok we got your position thank you  better was presented all of these times there was a franchise in place and she went further to say that she would have worked with b m w fs to preserve a franchise so that it could be sold as an ongoing business if there was no special counsel in this case the end of your fs would have moved in for a pleasant and stripped the dealership of anything that had been the you and they would have come in and stripped the dealership of its franchise it would have been an empty soul is a building because of the actions of special counsel at the time the stalking horse better was present and at the ultimate time of sale there was a franchise in place there was an ongoing business there were cars there was employees how can you say that i mean ultimately the decision whether there are many the franchise would have been with the franchise or the had special counsel not moved before the new york court there would have been no franchise yes and at that point there would have been nothing sellable to provide funds to pay off the end of u f o s but instead because of the actions taken by special counsel well that's not you know i don't think you're being responsive mr dobbs that just fantasy i don't put words his mouth but i'm curious to hear in answer to this too you're saying they would there would have been no franchise well that was that was strictly the decision of of the franchise or how if they didn't if they wanted to keep the franchise alive because it was worth more to alive than dead that was exclusively within their power to make that call that was that keep it alive so how can you say it would have gone down but for which expert said what when you said that i think it was the efforts but for the efforts of margolis well there's an order that was in place throughout the entire duration of the bankruptcy proceeding from the new york state court enjoining b m w and a from terminating the franchise and it but for that the letter that was sent out by b m w would have terminated the franchise within fifteen days so because that injunction was in place pursuant to new york state law in the us had something at the end of the day of the claims the strength of the claims they merely contacted b m w that's it so i think it's clear that he in the v f s benefited from the actions of special