court prior to the twilight at the request of the plaintiff in the adversary george three from the rest of the fifteen can't complain now our concern is that the bankruptcy court went beyond column three and appears to have preempted any further claim that ted ducasse and or his companies may have against george bush capital no the backup secord determine ultimately that the consideration that was promised for that know never came to be we take issue with that but we understand those are five factual findings so it's a tall order however we believe that there was ample evidence to have elicited from sterling bank's own chief officers of moral couple also took the position that the one point six million to two million dollars that were taken out of his accounts in sterling were loans to mr the court rejected that the court ultimately found that it was really a stock purchase and that he really was buying sterling bank stock we have issues with that determination based on many facts including the fact that stock certificates were not issued to mr ducasse or any of his companies those came much way after the fact after the falling out as well as that if it  stock sale if i would have violated the bank's policy enough p s u regulations that would have required the signing of the assigning of the subscription agreement to the private placement memorandum having said that the court rejected those arguments and then and now said it's a stock purchase missed the party said actually funded the two million dollars which are various ducasse entities those parties as of the date of the member and on decision were unaware that the court will ultimately make a determination that this is not along that this was a stock sale issues are raised regarding the propriety if that was a stock sale whether that stock sale complied with florida statute section five seventeen so it's something that could not have been into supported i guess a preemptive claim of sorts or an alternate claim could have been made but it's really as of the date that the memorandum decision is issued that these parties who are now been in our contention claimants or could be claimants would be claimants of the  should be entitled to follow a claim based upon the court's a termination that this was not alone and therefore there was not consideration given for the one point four million dollars she's been the fourteen million dollars promis viewing the consideration as a as a long versus burke book rather as a as a stock purchase obviously he did not know what the judge was ultimately going to determine but he saw the judge looking more at that consideration as a stock purchase remember this was a stock purchase and any company back that was about to be taken over this this was worthless stock that was being purchased that the evidence was very clear the only people that subscribe to this private placement memorandum was mr gonzales and mr ducasse he was fined non voting worthless stock but the judge said it's not a loan ok so it's not a lo it would put county council wanted to bring to the court's attention well then some there was some value here because he was in a way by purchasing stock capitalizing the bank which is what the bank needed in order to  eventually shut down so it's really raised in that vein but not raised so that the court will then make a determination that the decision claim was on time limit and then a further determination that these were exempt securities that's another determination there's two potential claims here the death of the rescission claim was timely brought and these were not examined this was not an exam security transaction registered shares and they had to comply with five conditions under florida law to which were not complied with so there's there's that's the fundamental problem can can can that finding now be taken to a point where it's so full of juda cation of any potential claims that mr ducasse or any other or any of his companies could assert against the state of mr bowles with respect to the of the claim from loan to security sale that this was a case a stock purchase there is a war there is a party but as your orders no late filed claims that there is there are procedures to follow the fall claims and the courts will look at several factors to determine whether to we just don't feel should be preempted based on what was tried and perhaps maybe even based on ill advised post finding of fact but i don't believe that  propose finding of a fact should then be brought in to be a complete education on any potential point the other issue is we have a problem with with the there was consideration there was some consideration it's undisputed that it wasn't a total want of consideration yet there's absolutely no consideration does that mean that mr ducasse if he gave any value should he be precluded from cast now there was a there was a two hundred fifty thousand dollar check that was provided by no misses and then the court found that that money was was returned in some other kind of transaction performing loan of three point six million dollars loan to help up the bank that was a significant loan on the backs of the books he did that he pledged he had five lots that there were original collateral for the approximately yes yes there was he questioned the the money went into his account and the stock was purchased in his name all of the stock certificates were not issued until much much later and his contention was that this was part of a he could not disclose because the agreement was confidential he could not disclose to the back that in reality he was really purchasing he was really capitalizing the bank this stock was worthless he was really providing money to the back for regulatory purposes this was not voting stock and the bank was in in in in under heightened regulatory scrutiny there were about a buck to be closed down he did not buy the stock to enrich himself he bought the stock to how about the back which is where ballots had most of his assets  are littered throughout the court's decision but at the bottom line this was no more complex than a standard red light green light traffic accident case is whether the white is red or whether it's green is determined by the credibility of the witnesses and all parties agree you can look through the proposed findings of fact submitted by mr ducasse as counsel below and you'll see that all parties plaintive defendant and the court agreed that the determining factor in this case would be who was telling the truth in the course of one hundred fifteen page decision judge hoffman family that mr revelle us was telling the truth in mr ducasse was not we know that when a determination is made by the trout were judged based upon credibility it is virtually impossible to challenge those findings on appeal and i would suggest to you that it is conclusive that the allegations that there was a failure of and we know that under evidence will four of were be evidence of similar and related misconduct at the vaca relevant to the proceed and so judge hartmann proceeded to consider that evidence he also proceeded to consider the igant is then foreclosed on appeal from complaining that the trial court proceeded to consider that issue and that is exactly what happened here because mr duke has changed his mind mr duke is change its mind during the course of the trial he had not f a very contentious a long trial that mr ducasse was going to be foreclosed from proceed on the quick capital note then not during the course of the truck by the way because when you look at the evidence you'll see there's very little testimony said judge to stop and go ahead and consider this issue so the judge hoffman proceeded to consider it and he didn't appropriately based upon the record that was presented to him because even though they were not expressing it explicitly what they were trying to do during the course of the trouble with the benefit of hindsight and now twenty twenty vision looking at we see that they were trying to develop this theory as an alternative argument during the course of the truck that's why they elected to present it as part of the  statute had been satisfied the other item that the court found that was significant is that mr duke is in fact had not sought rescission in a timely fashion that is not within three days of the payment of consideration it was actually four months later and not within three days of the delivery of the private placement now those are factual findings that were made and much like the other factual findings in this case i would suggest that  absent some extraordinary story that we have not seen in the papers that this course of review of that is is again women so we believe under all those theories there was no type of blue sky statute now we stand before court and say well we may have a host of other claims shame on judge hartmann for four closings or judge comma can only consider what was presented to him what was presented to him was at the time this adversary proceeding was tr counter claim filed by any of those adversary defendants in that proceed so he considered what was presented to them which is whether or not the quick capital claim is bail a valid he said no and then when mr duke is trade changes story and say wait a second i have an alternative argument i'd like you to consider judge the judge did him a favor and consider that he did so probably because again he was invited to do so and he's entitled to resolve that matter as part of the right and i agree with your own in that regard the other thing that you would perhaps appreciate is that since the there is a stipulation filed with the bankruptcy court indicating that but for the issues presented in this appeal screwed whatever they may be does not have any of them so the claims they had are the ones that were presented here nothing else that has been stipulated we went through the process with capital but it also contains that language they've just indicated to you regarding there being no other claims but for those that are now presented to this in this post so it sort of falls in the category  second the findings made by judge hoffman as to what he was specifically invited to consider that is the only thing framed by the paper so it's it's always an interesting academic approach to stand for the court and say well theoretically we have some other issues the question is what did you perfect for purposes of the appeal what did you elect to bring to the court's attention in that regard the record is clear we only have what the co it says once before this court is all there is nothing except what we know is before this court is only quick kept a promissory note and the securities that's it everything else is gun pursuant to that stipulation reached the correct decision and there is no basis at this point in time for challenging his decision either with respect to capital or the security issue again the only issue before the  there are procedures to consider late fall claims the bankruptcy code code allows for them all we wish you do get a resent ditties should have the right to pursue of the a claim for fourteen million dollars based upon the promissory note that was rejected and and the the reason mr ducasse as attorney quick count was attorney presented as a alternate finding the issue of the stock sale that if there's a stock sale it violated florida law was also to highlight the fact that this was not a stock sale because it would have violated for a law this really lon heighten that argument i believe it was an open seat statement i don't think it was the right thing to do because it created this argument however because there was an ill conceived attempt to focused a judge on the loan versus a stock sale by saying this stock sale violated florida law doesn't automatically make this ain't a twilit on theoretical count for call for saying mr ducasse and or his companies have no further claims here none whatsoever to preclude for ever and ever i don't believe it goes that us if i were to argue this in front of the top and tomorrow on an objection to a late fall claim i would argue the following bulbous took the position during the trial that this will say  was he was just fine stop in my company and my back he did so he knew he as far as his state of mind was concerned he knew where he took the position this was a stock sale so the notice to the debtor had notice that this was a stock sale if the stock sale violated florida law and there's remedies under florida law then the consequences under the law are imputed to mr bush policy in a state three then you look at rear organization they've they've just filed the third plan of reorganization with school overstatement there's still a pending unresolved claim of thirty million dollars in favor of the of the s c i would argue that a good a good a good decision can be made to the bankruptcy court that no prejudice no prejudice and no to late to the administration of the estate would flow from a late fall claim in this case only just this we only want to have to see up the ability to present the climb in and deal with thank you