of to a man is due extraordinary deference in this case above and beyond abuse of discretion because it occurred after the appellant she's media told he had already received leave to  in your brave but i did those didn't even carry the day before the bankruptcy court so if you're arguing that we need to get you know give deference to the bankruptcy court why should we reverse or or why should we have firm  position the bankruptcy court based on reasons that it didn't even rely upon even in denial because your honor as as our bridge indicates opening brief the court can affirm raise below about the procedural errors and if that's true as you pointed out the bankruptcy court is due deference why would we step in and affirm on those alternate grounds when the bankruptcy  number of the things that we are indicating the only thing the bench the court didn't address is the failure below of the of the trustee to file a proper notice of  here the trustee or the a pelleas have waived and two factors and we believe the trial court probably found the existence of the billing but it's not necessary that the court did that so because there is already a waiver and two factors that are into factors are enough we think that in either because of that or because of the fact that this was never filed the program the st place is simply cannot be an abus discretion ok we get to futility because that seemed to be with the bankruptcy court generally relied on and is perhaps your strongest argument but well we defer to them that the debate of the court we don't defer if it didn't make it even made a legal error and i'm concerned about whether the bankruptcy court properly considered whether there was any plausible basis for unreasonable to apply for the unreasonable small capital kinds to apply it didn't seem to consider all of those factors and i think you sort of allude to that in your brief why isn't that legal error in of itself to reverse the  it does go to franken and takes the question i was under the impression that under yeah so do we can we even consider that at all because that came out after the motion for that amendment and if we can consider it to what degree can we consider our one billion is you should not consider  our political we filed a motion opposing the attempt by our affably is to ask you to take judicial notice you think you can't consider it for because they didn't apply the correct standard which is  extraordinary circumstances to us well what we've got i mean i think there's two questions on that i i would be careful on your side to roll it into your group quest for judicial notice because we can still take judicial it seems like we can take judicial notice of it but the better question is is a relevant to can we consider it is that i just doesn't rest or old question the fact that that came out in two thousand and nineteen just because it came out after the amendment was requested is that off the table for that reason alone yes i was going there was the next point i was going to raise it's hard and we'll have a few seconds here but that was exactly what i was going to raise it's it would be improper to you could not all but were these facts in the f c c complaint known to the trustee at the time the amendment was requested yes and her argument is that they weren't on the trustee  opposition to the great movement but i guess one of the concerns i had with that argument and maybe you win you know either way this goes but your argument that we shouldn't be able to rely upon it because they haven't done their own due diligence seems inconsistent with your argument that you just stated which is well they had it before them i mean they either had it before them and didn't use it which is one reason to reject it or they didn't have a before them never did the d prior previously then they can't meet the standard they ask me to be able to consider i get in the end as a judicial notice it has to be extraordinary circumstances for you to take judicial notice that the appellate court they can't say there's extraordinary circumstances of they had access to all this before and they just didn't in their home and mr mendeloff i see your roughly two minutes of your time which is entirely correct i respectfully didn't believe the bath made an error there the reason being is twenty eight pages to make it then i concur but the reason your honor that we we disagree as because we have a difference of opinion on the interpretation of what happened as the court will note the bap sad i recognize the trial court gave the trustees some information back using the bath own words the bankruptcy court next stop the five forty eight analysis and only did two pays cash flow and balance sheet and messed with the crush the ever raise the a reasonably small capital issue ever we would argue that not of late to the actual citation roman numeral big two he never even said the word we did not say those two words what we said your honor is in the facts we set fort a series of facts that the company was not able to make its payments in the ordinary course of business payroll your honor two weeks before this happened payroll was not matched and it had to be paid for by an officer loaning money to the company and so we believe that we made enough arguments under five hundred and forty eight to withstand a motion to dismiss well how many how many a one million would you like to get then the court reversed its course from our perspective and rule differently the way the bab characterized it and the bab said the bankruptcy court and the parties made an error in saying that or five approach no your honor no your honor i don't think so but when i do think is that when you're talking about notice pleading you're putting them on notice of your general allegations which we made under five  allegations and we made inferences and we made legal conclusions we think that that is sufficient but the banker sick or at the back said no it is not sufficient but where they got to the issue was f trial and that's the real issue here is what is the futility of this and that's the only reason we submitted the s t c complaint just to show it if you look at the way the bath looked at it the bat didn't need yes the see because they found  plausible basis for pursuing the claims yes he complained only provides the court information that came in after everything to show that it isn't just the trustee making something up but rather that there really are incredible legal requirement because you all timidly as i understand it to show that they had small you know that there wasn't enough capital to be able to meet their obligations now you you have suggested here that they were going to be able to meet i'd like you to address that because my understanding is that they can borrow more funds and meet obligations than they would meet that obligation and that would seem to support the legal conclusion that the bankruptcy court made that this would be know right in other words it calls for speculation how you can do it all we can do is look at empirically what happened that they had to borrow four million dollars which they basically sold not borrowed but they had to acquire four million dollars to meet obligations within one week is transactions were flipped and all four million dollars about money was gone in other words they had to go borrow five million dollars the next week just to be able to pay back the  appellant's their money and give them extra kickers to be able to do that to me especially in a motion to dismiss where all the for inference or show should go in the favor of the trustee that's enough to show these guys can't make it we believe that you the trustee cattle edge back to show that it was undercapitalised when the deal came down in other words better can be a debtor can be solved it your honor but if after the transaction they are basically you from practical purposes they're going to die and that's what is in the complaint we basically said look they were living on life support they couldn't do this we don't know why it happened we don't control any of these people but why within one week would you go from having four million dollars of capital to run your company to the next we have five million dollars to bath and beyond life support and it makes no sense especially when you're borrowing money to be able to cover payroll will you could not i i think the bab did a good job i mean i'm i'm obviously disappointed in this but by saying look when it comes to five hundred and forty eight there are three separate bases the trustee should be able to allege fac on all three suitcases it hasn't happened bankruptcy court comperes the issues the parties confuse the issues the bankruptcy court gave some information to the trustee the cause and to believe it didn't need to address any further issues if the court looks at the records you'll see in the st hearing on the st man a complaint it is the court will literally said we're ok with one of those arms insolvency you don't need to go there so there was no additional out i have opinion the trustee should be given one last opportunity to file a nd amended complaint if you look at the prongs under the th circuit uses the word amendment with the plural the only case cited by the  appellant is a case that was published i think that's called math and it had to do with a seahawk claim everything else is two amendments or three amendments and some of them are like three or four years after it started there is no prejudice here your honors by allowing the trustee to file one more time no discovery conference no discovery no trial nothing like that the trustee is doing the best he can with the very limited information he has to try to two amendments at least it's plural because we've only had one amendment and while i understand the appellants are arguing that there could be some procedural macha nations you could have attached a nd draft to the motion for reconsideration those arguments were all rejected by the bag of property so that passed the end not whether or not you could have done it again it's were there a nd amendment was there i rd amended complaint were those also rejected and that's not the case either they tell us are just talks about several opportunities to man but in there there was there was no nd overview and i have no you know i just ask in response to this what is the undue prejudice i mean it well for stop what deference to e o i know you argue it's abuse of discretion and there seemed to be once one sentence in the in the banker stood there would be a new prejudice  what is beyond you prejudiced your client they're already fighting and as he see complain all these facts seem to be tied up into it why would there be prejudice in allowing this to go where i want not involved in the s e c case all our client are  investors that invested in the company and that were that were then removed after two weeks so were not involved that let me let me say in terms of that by the way this this idea that this time jackson found out that the company had a team financing in the form of them a note from our clients and objected to it in required the company to back out of the arrange it was jackson would then provide the additional financing way after that we heard about the five million dollars in fines there after tax and provided additional fines that's forward five or six months later now there 's a bankruptcy and jackson is driving this attempt to go back to our clients and make our clients put in two million dollars for a transaction that jackson itself had driven