prosecution of a claim under section three sixty three and of the bankruptcy code there were some other claims that were brought and we don't contest the award of fees for those services just for the services in the three it that three sixty three and proceeding should not have generated fees does your client come out ahead somehow well in theory there will be to get even a dollar yet in that the difference in value between between that the value of these assets that were sold and the price that was paid at the auction right comerica bank had a lien on those assets for seven million dollars  we paid two point seven the trustee claimed that the assets were worth five million so so if you look at it you say if we had paid what the trustee claimed these assets were wor we paid five million dollars at the auction it all gone american bank what then is the trustee doing right why is he prosecuting this guy it has no benefit to the bankruptcy estate and the bankruptcy code says that counsel is not entitled to be compensated for services not reasonably likely to benefit the bankruptcy state that's the way it goes there's this whole issue about whether that they're proceeds there are proceeds of that two hundred twenty five thousand that are not related to the three sixty three and claim their recovery of preferences which even mr mccarthy argues are not subject to the banks and so there are f estate penny pound what happens with fee applications there may be fines and at the end of the day you know unfortunately the way the bankruptcy code reads or works this is our only attorney to to raise this issue right the whole issue of one of three sixty three and claim should have been pursued by the trust deep could never have been raised by arlington in connection with the prosecution of the claim itself i trust standing to bring an action right under the bankruptcy code trust us standing to do a lot of things but that doesn't mean that we should and and and you know it's unfortunate that we're here after the fact but when you look at the whole context of of a bankruptcy and you know in litigation in general i think you know this court has still before you know mitigating what exactly this arlington have to gain from well your honor being the claim of the for arlington to recover its feast this this this court but give us the lineup in the bankruptcy court don't ministry these have to be paid before well there are legal oh yeah but they have to raines question looking at the order in which you know people are paid is there any related stand issues any chance that arlington will get a piece of that two hundred twenty five thousand it's theoretically possible what we're dealing with is we believe that this action should never have been prosecuted by the trustee right because it never had the possibility of benefiting the bankruptcy estate i'm talking about the that and what i can't understand is why when when when that same two point three million dollars difference is is is is tried to you know they try to get it through litigation it go someplace else that's that's that's that's the issue and if you look at the helms case that cited material it talks about you know proceeds of a secured creditors collateral and in the context of a claim you know that eventuates in award that is calculated by the diminution in the value of the collateral as a result of the alleged wrongdoing i mean it's like the definition of the the measure of damages under section three three sixty and for arlington we sit here we spent we spent hundreds of thousands of dollars defending this case hundreds of thousands of dollars defending a baseless case a case that never had a possibility of generating a nickel for the unsecured creditors and and i believe that that some of this court's opinions say hey when when the trustee takes action that is not likely to benefit the bankruptcy  case you're going to sue the lawyers that represented the trustee in the three sixty three well except when you find that the prosecution of this action was not reasonably likely to benefit the bankruptcy estate and it wasn't it was guaranteed not to you know just because the just because a trustee can do something doesn't mean that he should write mean feat because just hundreds of thousands of dollars for which one when arlington so you're looking for that five thousand and then  please the court john mccarthy on behalf of the apple the law firms to answer the question judge williams raise with respect to standing mr nicholson himself told the bankruptcy court from which this appeal arises that the chapter of eleven administrative claims were three hundred thousand dollars the combined of course as your honour's i'm sure are aware chapter seven administratorship administrative claims come first then chapter eleven administrative claims then any priority claims like priority cash claims and i don't know whether they are here or not because it really doesn't matter because you don't even get past the administrative creditors with the true twenty five the combined awards to the two law firms or over nine hundred thousand dollars there are the record shows that there are two other law firms that  chapter seven administrative creditors that have yet the father fee applications plus the trustee if the judge chapter seven trustee is entitle to a commission so if you even get past the chapter seven administrative creditors with the two hundred twenty five thousand mr nicholson represented that there were three hundred thousand dollars worth of chaff there are eleven administrative claims in this case his client has zero chance and he's got to prove standing to appeal this court and all the courts of appeals across the country that have addressed the issue on stand and say you have to have you have to be a person aggrieved you have to have a puny ery interest in the matter before the court which means that either your property diminishes your burdens increase or there's some other peculiarity interest they absolutely have none and he told your honour's this morning the real reason why he wants to do it which is years after the fact he wants to sue the lawyers who brought the case which judge brinkman twice twice reviewed on summary judgment before it went to trial and twice said there was sufficient evidence to believe that there was collusion by mr by his committee the nicholson's client and the insiders with respect to the sale and therefore that the case could go forward it was not a baseless case as he said for me twice said it had merit that there was evidence sufficient to show it the fact that a jury determined otherwise doesn't turn a case that was a good case into a basis case plus there was of course there was a motion for directed verdict or in the trial in that in the three sixty three and claim which was not granted so the underlying claim was not baseless and mr nicholson made a reference to the k p and g versus maxwell case and if you're honest take a look at that case in fact the basis for pursuing claims against the attorneys was not the theory he's positing now but instead was a violation of rule a perceived violation of rule ninety eleven which of course is we're well past that stage and here dick they didn't appeal there was no action that the three sixty three one claim is has since been dismissed no appeals were taken by either side so there's no basis is quite does not square with the faction or and then and two things there are two stipulations of fact the should keep in mind when you consider this case the first one is that arlington consented to the sale of the assets free and clear of its liens so how he thinks that they could after having consented to the sale free and clear that lease they somehow continue to have liens on proceeds he's never explained the second thing that  stipulated to in the pretrial order was that comerica has never asserted that it has a plea which of course goes back to the standing question he's here trying to argue a point that comerica says that not only does it has never started it it's lawyer testified in the trial in this case that it's always can participate in any recovery as a general unsecured creditors this is a there's plenty of cases that say an avoi actions the the claim belongs to the trustee the recovery belongs to the state you can attach it pre preposition weeks or not attached to it unless you the court has any further questions i'll rest on the brief ok well thank you very much not it does not seek to recover a preposition transfer and redistribute property for the benefit of all the creditors it were it arises a result of a post petition conda right and unlike a preference action which itself is t property that is the after acquired property the property that we're talking about here is the damages to property of the state which is the proceeds that are addressed and in that helms case number one the bank consented to the sale free and clear with liens to if mr mccarthy's claim is tonight it's the biggest claim by far why would they why would it be denied it would be tonight because it's it's it was not for the been for the bankruptcy estate that's what i'm asking  saying that that recovery that he sought in connection with the three sixty three m claim will have you given reasons for thinking it would not be the benefit it is absolutely because it's the proceeds of the bank's collateral when when the back it was consented to the sale of its property frankly airplanes right right with the liens to attach to the proceeds of the sale the bank got the two point seven million dollars right and would have gotten more right but because because because because the because the damages that were claimed were attributable to the value of that property and our point is that the trustee didn't even allege that the value of the property exceeded the amount that was owed to the bank and in that circumstance there was never going to be any money available for unsecured creditors and the trustee never should have brought the action that's ok well thank you