two hundred ninety nine thousand three hundred thirty three dollars fifty one cents and that's why the standing alone no your honor that is actually less than the outstanding because i believe where we are only allowed and what about me seems to me as if there were some inventory issues here regarding who what belonged to them who bought it where and where it came that was paid in full one staffer happened it was all her states her state had a lien on everything i think that's part of the problem in the case is that the trial court thought that it was two separate things but it's regions his word is not a defense to an intentional torque and conversion is an intentional tort under the agreement or whatever the default is they always made their payments at the stand that he accept wasn't that the fall but then they didn't declare before and they didn't take steps to take possession of the that had an inferior interest occurred state that student in this case her state didn't know about ok now what about the fact that first day it seems to me just from my gathering reading  wasn't involved much in inventory financing they didn't really know what they should be doing it seemed to me or at least this new banker they hired certainly did seem to stay on top of the case but but your honor you're talking about fail guilty of criminal conversion when this is a civil conversion damn park knew about our security interest they had both actual and record notice and they went ahead and took all of our collateral even twice proceeds into their sole possession and control they were not acting as an agent i'm just selfless they were acting as a security creditor and they admitted that at trial that permission was in the was in the our consulting parties would keep their dealings confidential neither just so those who are deer park informed her state that deer park was involved in the sales all we knew was that they i don't think under the law conversion that requires you to figure out the somebodies taking your stuff there is nothing in that in that purchase money notice nothing that indicates that deal park is going to participate in the sales and that priority in this case we're saying the purchase money was paid in full it was all ours and in that southern vermont case the the our what happened was the debtor filed bankruptcy the and distributing them out without the knowledge that that wasn't at all the issue in this case that is an excellent argument if the this court believed that that case was a precedent it seems to me that the judge was not because diamond was not a line upon that is a precedent he was using it to express his detailed findings of the failures of the bank to act  and he was saying and i understand you don't agree with the saying you know contributory negligence ok that's out but if you are this is an involved which is how he viewed it he did not find her state i mean i think he found her state didn't know he just found they should not they should have figured out what was going on and there is not one bit of testimony that indicates that prairie state knew in fact the court robbers don't always tell the truth that's why you have the financing state and is to let everybody know oh dear heart what i have to do is say we're taking your we're taking your stuff we even they didn't even isn't any no that's not good but they go and open the store there anyway and then later you find out through the grapevine they are going they have a store in lincoln and they're having a sale and then there's some contact with clouds or who doesn't present the best example of a business person who says al yeah yeah i worked on that but we're going to  at the business that you told him not to open that's why that store's closing yeah understanding the sale of inventory would be part of that closing but doesn't that put you in a position to be deemed insecure and you've got to jump up and find out what's going on i mean i'm asking mr from the perspective of how the trial court must've been viewing it i'm sure stand that i understand that your honor and i understand that  scene we were negligent that's what the trial court was saying but not waiver is is a no only it has to be knowing you have to do some takes some decisive act  doesn't make them account for the proceeds doesn't make them we face the collateral doesn't mean they waive their security interest and that funds case address precisely that they said that that was in the context of o strictly the collateral and the proceeds in the hands of the debtor putting such a duty on a secured party would severely undercut significant values of certainty efficiency and reliance which are at the heart of coal in fences on public fi do is put our names on the chair or even co op and say we're doing this and they didn't do that and we're saying they are guilty of convergent negligence is not and not negligence is not the standard under the uniform commercial code it's not the standard under the law of conversion it can't be why why would any bank want to do when twenty financing if they're if they're dead or ordinary course of business we didn't know he had looked like he was operating inside the ordinary course of business he was having a say about what he's supposed to do he didn't tell us their part couldn't tell us there is nothing in any of the documents in this case to indicate what they were up to and we didn't know about it and tell it was too late to do it and that's why we're saying that this decision should be reversed and we've proven the amount of collateral limits very proceeds specifically using their own documents we proved the amount that they talk and distributed to people having an inferior interest and i guess my time is up and i request the court  persons you just heard in the appellant's argument was that this is a case of a case of first impression in reality is it is a case that should never have been brought you did not hear one case cited today nor will you ever find one in any of the briefs that warrants a claim like this for conversion against a consultant like my client there is no legal authority to that effect judge now that's correct but that the account itself was in the name of the merchant and known soley by the merchant how could the merchant take any money out of there he was not a signatory on the account because under the consulting agreement the merchant had the authority to give directions to my client as to how the money should be spent after my client was paid for its purchase money security interest and its commissions under the consulting agreement there was over one hundred twenty five thousand dollars that was available to the merchant to spend and and my client was under the obligation to spend the money however the merchant directed the merchant controlled the expenditure of the money and control the inventory itself and this this is the the fundamental point the judge diamond dot dot at the trial and by entering into this consultant agreement the merchants violated the obligation to conduct its business in the ordinary course of business  inventory except in my ordinary course of business at the fair market value the bank is claiming that this promise in the security agreement was violated because he has the bank with went mostly argues in its brief because the collateral proceeds were in a bank account to which agreement does not make any reference nor does it apply to the years control or disposition of proceeds it only concerns selling inventory outside of the ordinary course of business and that never occurred because the merchant was always in control of its inventory the merchant way of the sale the merchants employee ease directed the sale the consultant never took over the inventory if you were the bank i would submit to your honor it is diplomatically as i can that the bank did not perform responsibly one might say they were incompetent in handling and monitoring this loan i think we agree with that your client knew that bank had a private security interest in the proceeds of the collateral that they gave the purchase money for if your client ended up with everything then including money that they had prior know why is that not correct if judge diamond found the waiver he's saying they waive their right you get it so why didn't they have a prior interest in you before you find waiver i did i believe and trust waived its interest in the security agreement due to its contributory negligence so while he is using a phrase contributory negligence the focus is that they were waving so river waiver is the issue  all five well what she's been arguing and did much this morning is saying that we didn't know what was going on the the part never told us what was going on they didn't tell us that they were doing what they were doing as if this is a case replier in deer park to give notification this was an argument that was raised by terry in the closing argument at the bench trial so first time that this argument of failure to notify was ever made and judge diving rightly said wait a minute you can already figured it out of five it's never been in the pleadings this is not a case about failure to notify this is about  security interest they got that then they were getting eight percent of sales and all these other commissions and after that right and they ended up with all the money in the count didn't they know the merchant spent one hundred twenty five thousand dollars in ways that were responsible warranting this court's earlier conclusion that this merchant was not particularly smart businessman but he had one hundred twenty five thousand dollars left over and  also gets to this issue of the images before these liquidation sales started in the in the bloomington store was being shut down and the decatur stores doing a wall to wall blowout sale in stock that was how this was designed and that's how it went before that started the inventory at the bloomington store had a value of roughly seventy eight thousand dollars and the other had a sixty something that the total amount of the inventory between bloomington here the total amount of the inventory is about one hundred forty three thousand dollars that's not just along with that inventory we also know that the  merchant forty thousand dollars to ashley furniture for inventory to purchased operating the business so you could look at this is we know that we haven't had inventory of one hundred forty three thousand dollars but we also have a forty forty thousand dollar bet they're actually furniture ok now the consultant there part comes in and they do the sale and they do it peacefully well and the merchant ends up significantly better off than when my client was in and that's even taking into account every penny and drop that was paid to deer park associates because after  associates was finished the bloomington store had closed which the bank wanted done they wanted it shut down they never wanted it opened in the first place but he cater short remained and had sixty thousand dollars of after the consultant left after twelve weeks the merchant has sixty thousand dollars of inventory many of the hundred twenty five thousand dollars of cash and wiped out a forty thousand dollar debt and if you take that picture into the and compare it to the picture that existed before the consultant came in you will see that the the merchant was in substantially better financial position at that point the before the sale started judge diamond recognized that that and noted that in one of his findings and he was absolutely right and that's why the this is crocodile tears by the bank saying well you came in and you haven't shown us the consultant loop ation over the bank who had the security interest in the proceeds from the sales because the contract provided for the man trapped between home between the merchant and your part ok so you have an agreement between you and the merchant but the bank has a security interest in those funds how do you take priority under the consult counsel and brown wrote a letter to the bank's counsel stating that there is no basis for this claim please withdraw it we will end and we can send you the thirty thirty one thousand dollars that's have been brought up plus a very serious matter that occurred the trial court net was an affidavit was signed by the by the loan officer that ed charge of this one liquidation sale tell me what's going on cause or says this is what's going on liquidating the bloomington store and shutting it down well and says that's good we never wanted that in the first place and then he says i'm doing a wall to wall restocking clear nobody made any effort to notify us about the sale because they did not and of course nobody made any effort to tell us about harvesting all as to the damages your honor we are saying and we specify the damages there are in our brief they're there in exhibit oh that was produced a trial these damages were taken farm documents sale documents that  and the record your honor there is an exhibit in the record a u c c search ashley furniture is nowhere in there so the forty thousand dollars that was given to ashley furniture they were an unsecured creditor who that this court our asked about is also in that two hundred and ninety nine passing dollars numbers are you saying what the payment to ashley is of default the well no i'm saying the payment well yes the payment a just so his agent it is crystal clear from that consulting agreement that they are not him says in several different places we are not your age they made that crystal clear they admitted that in their briefs they admitted that at trial deer park was not acting as just selfless angel so just sometimes doesn't have the power of direction deer park testified and made it actually go they took those proceeds to protect their purchase money security interests they were acting as a secured predator when they did that and i think the court even recognize this in his in its sanctions order when he said that they were basically wearing two hats they were consulted and they were secured creditor the  park knew about us they were the ones that have the opportunity that have the knowledge all we would have to do is say we're doing this or put our names on check if they want to put our names on the check and her state would have signed off on them that's