your honors i'd like to focus on two general categories where i believe the bankruptcy court erred in its findings on remaining first the bankruptcy's remained proceeding itself appellant believes violates this court's mandate when sunshine how first was successful before this court in defeating the challenge to the characterization of its lease it came before this court with a complete record it came before this court with comprehensive briefing regarding the ownership of the cows at issue in this court determined we believe on equivocal that if the court were to characterize this lease is a truly says then the consequence of that is that sunshine halfords would be entitled to approximately three hundred nine thousand dollars  analysis and specifically found that the ownership of this herd is a significant asset in that sunshine how for years has a reversionary interest in that herd this court sent the proceeding back to the bankruptcy court for a determination consistent with this court's ruling from our perspective that means that the bankruptcy court was tasked with sorting out exactly how many of the cows that were approximated in the record actually belonged to sunshine heifers the only additional information that was relevant to that question that came up in the remained proceeding was the exact number of branded cows sold at auction two hundred eighty nine and the exact dollar proceeds associated with those branded cows sold at auction three hundred one thousand three hundred eighteen dollars in our view that should have been the extent of the remand proceeding and the court should have awarded sunshine half hours a money judgment for that amount and the funds to be turned over consistent with that determination and consistent with the determination of this court but my understanding and correct me if i'm wrong is that the district court on the remain and decided that sunshine did not own any of the cows that remained in purdy's purview after this courtroom and right that's that's correct your honor the bankruptcy court made that determination and we believe that's a violation of them and we believe that the record was complete that in order for this court at the six circuit level in order to affect the rights of the litigants in determine whether or not this was a lease or a disguised financing very much necessarily required that sunshine halfords must have owned at least one cow  that's why the ownership question was a predicate to the characterization of the lease itself otherwise as citizens did the opinion which i know we know well did the opinion say anything about sunshine actually owning one cow or more i don't want to presume you're going all the again as you have to tell you the opinion that you wrote my section which says if this lease is a truly us then sunshine halfords is entitle to approximately three hundred thousand dollars and the opposing argument as well that's just citing two sunshines brief at the conclusion of the analysis section the court determined that this asset this herd is a significant asset and it's determined that sunshine has  reversionary interest in the her but my understanding you know it trying to move forward from what happened a few years ago my understanding is that the bankruptcy court holds a hearing and has lots of testimony from people who are knowledgeable in the local area and who evaluate the tagging of the cows and the branding of the cows and on the basis of this hearing the bankruptcy judge concludes that all of sunshines cows were disposed before the bankruptcy sale and do correct me where i'm wrong here my right that that's so far you're correct and let me explain why i think that is either clearly erroneous from a factual standpoint or an error of law from a legal conclusion stand on number one the bankruptcy court determined that as of this alleged mass branding of that occurred in august of two thousand and twelve no one could distinguish the ownership of these chemicals that was a finding that was undisturbed by the bankruptcy court that was a ruling of the bankruptcy court subsequently the court reaches its remit and opinion and says that there were no sunshine heifers cows on the debtors farm any longer because the debtor mr purdie testified that between september and november of two thousand and twelve he sold approximately two hundred fifty cows most of which were sunshine so the court on the one hand determines that this mass branding event in august rendered it impossible for any one to determine who these cows belong to and then subsequently says well we're going to rely on mr purdy's testimony that he himself could determine that two hundred fifty cows were sold in those were sunshine cows despite this alleged mass brand well there are other witnesses who testified is that not correct you had couple of othe farmers you had i guess sunshines representative who talked about how maybe the least a criminal or not you know completely compliant with in terms of various things and you also had the bank representative that's correct in every one of those circumstances your honor it discredits the allegation that there was a mass branding on august fourteenth of two thousand and twelve there was cow a cow the bank did the countdown they did the appraisal and they said there are three hundred twenty branded sunshine heifers cows these are least cattle when mr moore who represented the bank testified she specifically said that's not our collateral that's august fourteenth of two thousand and twelve three hundred twenty branded giles then the bankruptcy court says well mr purdy testified that two hundred fifty cows were sold between september hundred fifty according to mr purdie to money we still have seventy unaccounted branded cals so we believe that's a clearly erroneous factual determination the other determination bankruptcy court made was an error of law the error of law occurred because despite sunshine coming forward with evidence of its brand saying of the four hundred and fifteen cows sold at the bankruptcy auction we lay our claim to exactly two hundred eighty nine when we submit evidence to the court in the form of our brain citizen steps forward in argues our security agreement attaches to all four hundred fifteen cows all branded gas now they don't meet their obligation to trace proceeds in order to identify collateral that their security interest attached to they simply say that the debtor cared for and exercised custody and control over this least property and therefore our security interest attaches and the bankruptcy court adopted that in we believe made an error in making a log back as wide ranging consequences in this circumstance it is undisputed that the creditor was not deceived about the collateral on the property they counted the branded the least cows they recognized in admitted in specific testimony this is not collateral the reason why that is so significant is it is because it distinguishes these facts from the brown case that the bankruptcy court merely exclusively relied upon in this circumstance we ha the sixth circuit determining that this is a true these determining that my client has owned property not it's undisputed that the intention of the parties was that there would be lease property owned by sunshine and there would be debtors property so to the banks security interest and there is nothing regarding the intention of the parties or the admission of sunshine that changes that was the impact of what appears to have the security interest taken on cattle and replacement cattle as well i guess and that the with respect to these leases that there was not a separate agreement that anybody can follow nothing in here is why the bank can't trace those proceeds to the cows that we have in question before this court and it was the imprecision in the bankruptcy court opinion where the bankruptcy court at in these circumstances for these fifty cows the funds may have come from the debtors account that's true in the situation of replacement cows funds may have come from the debtors account that's true but in other circumstances my client paid for the cows branded them in place them on the farm so now we have different characters ations of this property in then under that circumstance it's incumbent upon the secured creditor to trace which ones belong to him will consent that no one can do that which is why when you examine the burden of proof standard you have to examine it not from the bankruptcy courts perspective of saying i want to know with certainty you have to examine it from the perspective of sunshine has identified its brand as evidence two hundred eighty nine cows citizens bank can't identify which of the branded cows came from proceeds of the citizens account and i think they'd concede that is there any evidence as to when sunshine last paid for cows that were on the purdy property july or august of two thousand and twelve just months before and how many cows were bought with sunshine funds at that point one hundred were placed on the farm and there is a dispute about a reimbursement that my client gave that he paid for one hundred cows that were deposited between july and august two thousand and twelve as the last batch of least  he meaning sunshine sunshine and those were granted by such time before they were placed on the they were branded by the party that was delivering the trucking company with brand the cows before they reach that or as they got off the truck on the pretty property thank you ok acquire property attaches to these cows whether they were cows they were coming in pursuant to the lease or what if they were cows that have been referred to now as replacement calles if our money was in fact used to purchase those couse there is no dispute that the cals that were used and purchased with funds from the citizens first the cayo that do not have brands are collateral of the bank and how many cows are that number roughly it's was the difference in the number it would be in the eighty five head that were sold by the trustee plus the ones that were acquired post petition one of the questions that have to be decided the end is if kal's are purchased by the debtor with the funds from our collateral but these are branded does that brand convey title to sunshine heifers or doesn't the debtor have rights to the collateral at the time that he is receiving the cattle that he has been has purchased with the proceeds of our collateral there is no intercompany agreement where citizens first bank is agreed to allow the debtor to take money from the account from which the debtor has deposited the proceeds from the sale of the milk and sale of cattle to use those to purchase cattle for the benefit of sunshine heifers but that is in fact what they are attempting to argue that because these have been branded at some point in time no matter the source of the funds that those cows have now become their property and not property of either purty or that mr purdie had rights in those sufficient to allow a security interest to attach now unlike the cases that are sided by the appellant we have more than mere possession of the cattle luckily that's probably the distinction between dairy cattle and beef cattle they're being held on the property of these cattle the dairy cattle are income producing property once they got onto was milking them and deriving the income from the cows so he had rights an interest in these councils that go beyond a mere possession of the cattle the problem with the tracing issue doesn't fact go both ways we don't know of the cattle that were branded and sold by the trustee if those came from or if those are replacement cows if those were cows that were just branded by mistake as some of the evidence would suggest are those cows from the first lease or those cows from the second lease so they may talk about we're not able to trace but frankly neither are they has the burden well the court has determined both parties share the burden so it becomes i guess is the court is the brand going to be dispositive of the ownership or is the body going to be dispositive the ownership legally as a matter of law is the bankruptcy court correct in saying that both parties have the burden or is right you know that is one that the of the case that the court cites for that proposition is the only case that i can find that dealt with that issue now maybe the court would direct this the bankruptcy if this goes back once again that the board has to be placed on on one of the other but i would like to point out exactly who should bear the burden i think logically in this case because the underlying issue initially was not a fight as between the creditor and sunshine but this is coming out of a bankruptcy court decision the initial decision was the question is were these cattle property of the bankruptcy estate then sunshine should carry the burden to establish initial motion that these are least they were own and these cattle are not property of the estate it is only somewhat derivative that if they are property of the estate the secured credit would have a claim and i think if we go back and look at how this issue arose the initial decision from the court was on a motion to shorten the time period for the debtor to assume or reject sunshines lease so in that context i believe that sunshine frankly should bear the burden that these were not in fact the property they state and that the debtor schedules who listed all these cattle as his property were in correct  sun sign provide its own funds to purchase any of these cows i think on some of that they did the first lease it is for the first fifty cattle that were clear i think in that case they did provide those funds now whether those cows still existed on the date of the sale or whether they had been cold through the record can't tell that was can we not tricks to the last lease that your honor was asking hundred it's our contention if you look at the trail of the checks it is clear that the citizens first money is what was used to purchase those cattle leap pretty in vance to bonnie to kendall branstetter to go purchase cattle those cattle were delivered in on the farm before the lease was signed with sunshine and before sunshine cut the  reimburse him what they thought they were reimbursing him but branstetter just turned around and gave that check back to lee pretty well then i don't understand why they wouldn't be considered some signs hows of sunshine in fact well at that point in time they're pretty not providing cattle they're providing money it's to do to deal with this is a true lease sunshine should have taken ownership as their lease anticipated before the debtor took possession and acquired rights in this property which would have been sufficient to allow our security interest to attach typically if it's a leasing equipment or any other source  the the lease less income leasing company acquires the to put it from a third party so it has a good title and then that's then delivered to the debtor pursuant to the lease here as in the case with the very first leas sunshine had title to those cattle before they released deliberately pretty so it had established an ownership interest here in the last lease and then in the second lease for some of the cattle it does it hadn't established that ownership interest in them before the proceeds of our collateral were used to acquire the asset the timing is everything at a time it's got to be because th way to for them to establish true ownership was for them to pay for the cattle from a third party and have them branded and then delivered subject to their ownership interest having been established before the debtor gets possession and begins acquiring rights in their own we had the same problem with the the second lease there was testimony that one of the waar was actually made with the pretty as opposed to branstetter again it was because pretty had already advanced funds to acquire that take it aside the lease that is ultimately the problem with all of the replacement cows is sunshine is not advancing any funds to acquire the replacement hales all the funds for anything that would be deemed a replacement was coming from the citizens first bank account which would have been from the proceeds of coal cows and majority of it was from the proceeds from the sale of the mill so in essence they all are forcing citizens first as i said to acquire collateral for them and using our money to do that just briefly to address the mandate issue i think it's clear from the core issue issue just a general  language that it used some of the other cases comerica that we cited in a brief that the language remand for further proceedings consistent with this opinion is evidence of a general rule remained as opposed to limited but more importantly the statement that they're hanging their hand had on in the case about three hundred ten thousand dollars being heard for the value that would not have been in this record because the cals had not been sold at the time that the first appeal was taken the issue before the bankruptcy court initially they had their mind that the first evidentiary hearing was within sixty days of the bankruptcy being filed were on the initial procedural questions of whether a station be terminated for the benefit of the bank or whether sunshine had asked for a shorting shortening of the time to assume or reject the lease while there was a lot of testimony as to that these ownership interest in the bankruptcy court never got to that question because the just determine and took the easy way out that this was not a true lease and thought that supposed of the question so when that appeal was taken there was no evidence in the record as to sales proceeds or how much that was that was heard was worth that comes into the record for the first time at the district court level in the brief filed by a prior counsel for the men for the appellate and it was in the brief again because the court looks at its decision your honor references the for that statement rather than the record because there was no testimony so this case had to go back once there was a determination that the bankruptcy court erred on the legal question of whether this was a true lease but the court then had to address the question of the ownership of the cattle or whether the security interest attached i would point out to my time that the bankruptcy court relied distinction in those cases was based upon who paid for the cattle in roe waiter the evidence was clear that mr rowe eater own the cattle before they were delivered to the debtor there was no evidence that the debtors funds or any other funds were used to purchase those cows in the cook a side by the appellate again the evidence was clear that mr cook had standard to the court copies of the checks where he had purchased the campus in the brown case that the bankruptcy court relied upon made pointed out that the funds that were advanced by the last or in this case the individual claiming to be owner had been advanced to the debtor but the debtor had deposited those into the debtors account and as a result funds and because of that commingling ownership could no longer be traced so if we are looking to road leader and cook to be guidance i think they can be if you believe that sunshine should have paid for its all of the cattle had ownership of the cattle before those cattle were delivered to mr pretty however by allowing the fun's here to be co mingled and using the proceeds from the citizens first collateral to acquire i think that gives a break in the ownership that's not overcome by the brand briefly on the brand question would point out that the brand was not registered until this bankruptcy after the bankruptcy was filed general bankruptcy principle is the rights of the parties are determined as of the date of the filing of the petition why does it matter whether the brand is registered if it is assigned if it is registered and if it had been registered at the date of the filing at the titian the court may have given it more evidence more weight as to the private facia proof of ownership now i think that was overcome by the record because there was testimony not only to lee pretty that his employees had mistakenly branded other cows kend that lee pretties cruz would brand callus no matter whether they were coming in as a result of the lease but is there any confusion among the different brands is there any reason why registration is significant only on the one hand i thought we were being told that sunshine caused its cattle to be branded before they came onto the property of lee purdy but now but in the record and the bankruptcy court relied on evidence that purdy's employees were kind of randomly branding these cat when were they actually brand will it some of them were branded before they were delivered to the farm welcome back to that i think it's important well my time it's the there is evidence that libor he had in his position a brand so that his employees were branding that was the testimony that you know this was a smelly bad job so they would line him up and brand them when they were there we also have evidence the one identifiable sale or purchase a cattle by pretty after the last lease pretty buys forty eight head of cattle from linus could unrelated to the lease pays for it in three checks they were evidence in the record in august september and october to buy additional counts because there was a prior relationship between linus conan and sunshine mr coonan branded those cattle thinking that those were going to be related to sunshine so we know we've got calles now coming in totally unrelated to a lease paid for that we know are branded even by a third party before they hit the farm so i think we have depending on the load some are branded elsewhere lee prudy is branding them some on their hand and with the sun sign brand oh that's the only brand that's that's part of this case no other brand than any of these and that was have been a den of fun we call them cows or cattle i'm strictly in use or what i know about this product i have learned at e thank you let me clarify let me clarify the the number of cattle purchased by my client from undisputed funds that came from my client with respect to lease number one we placed forty five head on the farm from a nother dairy these were cows that we brought in to the purty farm lease number two we supplied seventy five head from mr layton and another eighty seven head into loads and we made wire transfers directly to mr layton for those cows the next load came in from mr linus kunin they were forty head and we sent a check directly to him in the least number three we acquired another thirty eight head cunanan and we paid him directly that's two hundred eighty five head of cattle that when with my clients money the reason why that is significant your honour's is because we get back to the burden and the tracing issues we know that we acquired these cattle the appellee then distinguish is the key case in says in brown there was co mingling of funds and that's the distinguishing feature but we have no co mingling the f in says what we have here is the debtor using cash from our bank account not comingle funds to acquire certain cattle ok the case law reconciles that by saying what was the intent of the parties who owned that those cows in that gap how did you distinguish them well because they were branded in the import of the timing of the brand that the bankruptcy court placed dairy cattle all over the nation he brands of those cattle he takes them into the state of kentucky where he doesn't have any cattle at that moment because her brand we register according to the statute our brain what the bankruptcy court is saying is that since you didn't actually physically brand those cows until if you didn't do it after the bra registered then the brand statute gives you no weight of evidence and we think that is an incorrect determination we think we can rely on the brand in that places some weight of evidence on our side of the scale to satisfy our maybe between september and the filing date of the chapter twelve that he sold something like two hundred fifty cattle or cows  says that most of those were sunshine cows correct correct i mean i guess what does the record show in terms of of the two hundred eighty five that you say would deliver suchlike right we would say number one that the bankruptcy court already determined that as of this mass branding event no one could have determined if these were all sunshine cows and secondly we know that the bank had consented in identified exactly three hundred twenty branded cows as of august fourteenth two thousand and twelve then between september and november he apparently sells two hundred fifty and somehow the bankruptcy court gets to the conclusion that if you start with three twenty branded cows august fourteen of twelve in you go through august in november and you sell two hundred fifty of the three twenty you somehow get to zero we believe that's clearly the sunshine have i guess it does come down to this sort of the burden here but so let's say it's not zero but such i can't show that it to eighty five either right  with certainty your honor but we would submit that we have placed evidence of the brand forward consistent with the statute that satisfies our burden the two hundred eighty nine brand of cows belong to sunshine in when you view that in the vacuum of evidence supplied by the bank regarding those exact same cows we when the burden of  using whatever resources may be available including our mediation services so i just mention that i'm not suggesting you do anything further requiring it i just mentioning that as case would be submit it appreciate it again thank you and you may call the final argue case today