the bankruptcy court entered summary judgment in favor of the trustee avoiding the three preferential transfers in effect what the bankruptcy judge did was require reuter to discourse those payments that receive equally with the other creditors of the estate that's consistent with the primary purpose of the bankruptcy code writer appealed the bankruptcy courts judgement to the district court which reversed the trustee in turn appealed to  contemporaneous exchange exception what reuters is arguing for the first time to this court is that right or had a lien against unpaid contract proceeds to remain trustee agrees entirely there's two different issues that i've been asked about now that the contemporaneous exchange exception as well as the the five forty seven the five element right that you have in both of those you have trustees burden to make a sufficient showing on a motion for summary judgment that the five forty seven b five element was satisfied in the trustee did in fact make that sufficient showing and in fact that was never in issue before the bankruptcy court if you look at reuters initial motion for summary judgment if you look at their response to the trustees crosspost if you look at their reply and if you look at the transcript of the oral argument writer never disputed that the trustee had satisfied the five forty being raised by word or perhaps and we would entirely agree with the court that these are new issues being raised for the first time on appeal and there are many ninth circuit cases as this court is where the absent extraordinary circumstances those arizona at the time these transfers were many and it's helpful to clarify what contract proceeds we're talking about here j b j it was a contractor it had a contract with the arizona department of transportation also known as a dutch to construct these public highways had unpaid proceeds that had not yet paid to j p g at least that's what's being argued by reuter reuters saying because writer had a lien against those proceeds in the hands of the figure requires the court to engage in at least a five step analysis and perhaps the very first step in the five step analysis of years worth their unpaid contract proceeds remaining payable before the court but the trustee would submit that even if this court looks beyond the waiver there are still at least four additional essential elements to that offense which were presented absolutely no evidence whatsoever and reuter had the statutory burden of under section five forty seven g to make a sufficient showing of all of these elements of the one of the most important elements which there is in the figure case significantly proceeds were given to the director if you look at the bankruptcy appellate panel's decision we believe that clarify the better did actually receive payments in excess necessary first step those procedures have to be there in order to go to the next step and these are the houses which is where those proceeds given to the better in the power and decision of the ninth circuit clarified that the fundamental inquiry in determining whether the contemporaneous exchange exception applies is whether there's a diminution of the state and so what we're talking about here is when the debtor makes transfers to reuter the preferential transfers in this case the estate is diminished unless there is a corresponding amount of contract proceeds given to the daughter that replenishes the estate and that is fundamentally what is missing here there is  substantially the same time as the doctor makes these transfers to right or the proceeds in the hands of the government may never go to the estate and in fact that's what happened in this case because the surety ultimately sustain losses and the court ordered that all if it's not given to the debtor it may never go to the debtor for a variety of reasons including the securities ultimate loss and the net effect is the status diminished the terms of the statute five protected because there was two thousand dollars in contract proceeds remaining and the net effect is the state's been diminished by eight thousand dollars because there's only two thousand dollars in proceeds yet these ten some contractors receive public panel's decision proceeds went from the project owner to the the debtor in that case and perhaps the issue was was not raised or focused upon because it was a different factual scenario here there is no evidence that any proceeds went to the debtor and in fact if we look at the broader picture we can we can see why it is so important that that requirement  law consequence that that all these jobs are going to come out solvent that there's going to be plenty of money to pay everybody that start a risk that router should be reasonably expected to take the trustee makes because the policy of the law under five forty  the five forty seven c one argument but as i was going through this literally i said wait a minute you know for almost the same reasons that there's no doubt there is a contemporaneous exchange of value you know within ninety days of the bankruptcy there's also the the preference period as if we knew when they were going to file bankruptcy because at some point the trustee would say well we lost money on that surely lost money on the job therefore you're out of luck five years later no that's not this that's not the situation here they haven't even been of those contract proceeds because we we were the ones that help justify the payment of those contract proceeds by giving our honest labor and honest materials we did that and that's why equity equitable lien put that mean on there it was to reverse the bankruptcy court and enter judgment in favor of router i would argue to the court that justice requires the summary that the summary judgment in favor of router be firm against the trustees preference crying thank you the proceeds did go to the debtor in that case therefore it was not an issue before the ninth circuit and the state is on page fourteen of the opening brief of eighty eight to five to sixty of the next issue mr duty has taken the position that it was reuters leaning against the contract proceeds to be released that is a fatally flawed argument because under the arizona little miller act and in a loss right or had absolutely no risk at all these were bonded jobs all right or had to do was go to the surety go to the payment and say painting all these policy arguments about encouraging