the next case on the calendar is sick monday goldman sachs good day your honor i'm david mesh and i am counsel to the trustee in bankruptcy wayne sigmund and the plaintiff in an action that has boiled down to just one claim for relief that  there there are really here what i would call two big three big three issues and one of them is a discovery issue the trustee my client feels he was wrongly deprived of discovery because the original documents are missing  we want to go back if nothing else and do so some more discovery on those documents very limited because we think they will impact the property transfer issue that we hear about today now that having been said let me why we got into just the property transfer issue as to the property transfer issue we say that argument number one is a total winner  no doubt we say that there was never any express exclusion from it to this is a game of to of terms in defined terms we're stuck with that and your argument is there needed to be an express done way back in two thousand and six remember that the deol your honor was consummated in two thousand and nine this all started as a construction project in june of two thousand and six so the loan agreement and the effected according to exhibit b and c b b has those three signed documents that just have to add the date put in the eight years no evidence here they were ever used and it seems to me that's because they didn't need to that the there was a transfer john in return for the forgiveness of the debt what am i missing there that that's how the transfer was done transfer of the property we say yes your honor that the property was transferred her interest was among the property threat is not just the real property are the hard collateral but the the membership in accordance with exhibit b we say well it was transferred in accordance with this if the but those documents are never filled out no no your honor the documents that you're speaking of i think are the what we call the  the the membership interest pledge and the and the and the power those are the two documents your honor that we can't find the originals of i say that the the letter has not been able to find them even though they claim those documents are in its possession a real irony but that's where we are not happen your honor very late in the game it happened returning to the contract argument and looking at it exhibit b signing acknowledging and delivering to transferees all the documents listed in exhibit b and we shouldn't seem to be in exhibit b anything that has anything to coalesce your honor there is all right what is that i'm glad you made that point because it's a very that's the problem if he was there the goldman sachs morgan your own or your aft and all the documents and you'll have to ask them why they put the d i l a on there and label it a transfer document and they got what an express exclusion is but we say that the d i r way f x did a transfer and council opposing counsel graciously conceded that that was a basis for being on  b in the in the briefing they say that if the if the a document affected the transfer then that it belongs on exhibit b and we say that in effect of the transfer here's how we get there if you go back to july twenty six signature this is an alternative way of getting the two to transfer the the d o a has a six signature page which says in printed words below the signatures on that page in his or her individual and personal capacity and care and then sign a six signature page now if you go to the i want to in specific section three dollars which is a case has been around for some time going back to two thousand and twelve there were three separate motions to dismiss in the district court and there's only one claim left for the that was ruled upon summary judgment in the district court and that is a constructive variety of interest judge reggie of rights as set forth there are seventeen numerated categories of documents relating to various forms of collateral including the deed including the real property itself is a piece of property in utah that were conveyed pursuant to the deed in lieu of foreclosure that's the operative document and i think we start with and respectfully we end with the plain terms of the agreement just like district judge carter ruled in granting summary judgment and then denying the motion for reconsideration but if i understand you right what you're saying was not affected by the d i r way it was a transfer of plaintiff's interest in d m s the membership interest your honor and the right i think it does apply here your honor i think it does apply when the parties take the time to the numerate seventeen specific categories and leave that do not include very interests that appellant claims was transferred i think that is a fairly strong indication of what was included and what was not in section two the operative provision the transfer and exhibit b which gives effect to section b the there reference to the agreement itself the d i r lay affected the transfer even if it wasn't one of the express items of the seventeen respectfully your honor had you not used the word circular i would have used the word circular because i think it is that the does not we've just construed you have to look at section two the mere inclusion of the dio i does not create additional rights is not an additional transfer we still go back to the perhaps more importantly the documents were not filled out their undated is no transferee they are included in our appendix if they had been included if they had been filled out they would have been included in exhibit  your position of her interest and and now is that it wasn't necessary to effect the trance yes property yes judge to get us to trust you that is true and again i don't think we have to get into testimony here because i think the contract is clear but there was a thirty six deposition taken here and i think with the your honor is referring to is the thirty six witness from goldman sachs to testify we did not feel we needed the transfer of those interests to accomplish our purpose of regaining control of the separate l l c interest memberships interest enough and there does seem to be and i know the collateral is not a defined term in the d i l a but it clearly is referring back to the collateral in the original agreement and there is this a and a some there's an education of desired collateral we're not transferring every interest that was part of the original arrangement that is correct in making the definition of desired collateral as i think the court has highlighted means all of the collateral accept such portions of the collateral as lender may elect not to have transferred the clearest evidence of an election by the lenders is again a sort of beating a dead horse is exhibit b of section two so there was no election by lenders to take those interests they are of no value they were not required to use the business purpose here the parties clearly set forth what was being transferred what was not and i don't i don't know if we have to go beyond the plain terms of the agreement here i'd be happy to answer any other questions from the i don't really address the three point one argument yes three point one  honor captions are not determinative but they are informative the caption for section two is the transfer and section two does lay out in a good degree of detail exactly how the paragraph which does not contain any transfer of these interests was to make sure that the transfer set forth in paragraph two could not be challenged later they wore enforcement mechanism if i may say but there's much your honors i think it is important here to keep in mind that we have three different rooms at least two different solid ways to get where we want to get the st is argument one requires an x an explicit exclusion and there was never an explicit exclusion and we're here remember because genuine issues of material fact matter and this is at least a genuine issue material fact what i submit to you is that there was never an exclusion and nothing council has said shows that there was an explicit exclusion the another very important point i think your hon carter's reference to the phrase in section three point one the last sentence in essence says that the phrase hereby cell transfer and convey doesn't do that and that it's something else and i'm sorry i don't have my notes in for what that something else is but i can't imagine that the words hereby cell transfer and the we say as another alternative to getting to a transfer and that and this is what our thirty minute complaint was all about which was allowed by judge carter as play and by the way the partner portions statement somebody statement they said that it could belong be on exhibit b if it affected the transfer not if it was some kind of specific document that they described i