that should be kept in mind as the court determines the merits of both appeals and that is the recusal motion there is there was a recusal motion filed in the bankruptcy court an after the second reversal of the following this one i believe that's important because in this case the trustee filed the preference action to recover the twenty thousand dollars that was paid within ninety days of bankruptcy we submitted evidence that the payment was not from the debtor was not part of the debtors estate but in fact came from a third party passed through the outer and then was paid for m and satisfaction in the judgment the initial tentative ruling of the bankruptcy court was that a tribal issue of fact existed as to the your marking of these funds that they may not that the fines he gave to earn a time off or through more adult would be used to pay this judgment the fact that they went through a series of convoluted transactions before they actually got to match after the finances some of them for gone to any well that's true it could have gone to anybody but at the summary judgment stage we contend that the undisputed facts that he knew these funds were going to use funds were requested to pay my cast he knew they were going to pay me correct we're on the record is that show well at that at the summary judgment stage we believe we have submitted evidence that erna talk was aware of the loan was needed to pay the debt that metcalf judgement but there was no evidence i mean again it key here is there had to be an agreement that it must be used for that and i'm asking you where in the records is that shell i know there was some and suggestion that that may have been the case that you said that you know the other price said the contrary but in order to establish what you're trying to establish you have to show the agreement and that it had to be used that way i here's the agreement and it had to be used the money had to be used to pay your client why is that show on the record well again we believe that you have to pull in different facts we've submitted that we have at this point again we're at the summary judgment agreement that the money was going to be put into ad box to pay your client and that the funds had to be used for that i don't see that on the record and i'm asking you where is it well your honor if if i stock the agreement between the parties was that the purchase price of the business three hundred fifteen thousand of which the twenty thousand was the last amount that had to be paid would be secured by the boxcar if there was litigation ar ising out of the transaction selling out by the prevailing party would be entitled to attorney's fees and conceivably he could go after the outbox stock but it wouldn't be that that obligation wouldn't be secured by the ad hoc st lawyers and eventually to make a calf raises the inference that there was an agreement because there were major that raises the in france that there was an agreement but you have not played or shown that there was an agreement if you know counsel you got a bankruptcy situation you are going out of the normal course here normally when something goes into a bankrupt estate it's subject to the bankruptcy trustee and all the other controls the only way to get out w it can flow through directly is if there is a new green meant that that's what it's going to do and it must be used for that no other way infringes don't work you've got to have an agreement and i don't see that plan and i certainly don't see a prim case of that in the record if you can correct me i'd love to have you do that so i can get my mind straight on it but i don't see that on the record well the district court found that we showed th numbers of that went to different places that were used for other things the money was not all paid to your client or used so all the money that was paid in was used to pay other obligations i don't know if there's any evidence about that i don't i don't know to the summary judgment order there was no facts in dispute and it was only for the purposes of this particular summary judgment motion that the trustee accepted that the other mon district court talks about two different deposits but i just wanted to make sure that you understood and that extent to disputes that there was any money deposited by them on june twenty sixth two thousand and two into the debtors account so that is just for the purposes of this motion we agreed to allow that issue just to go by the wayside but it does show that there really wasn't any agreement  burn who was the wife of the principal of the debt or had any control over the funds that they deposited into the debtors account and they specifically filed declarations testimony under oath that they had no control that there was no agreement and there was absolutely no basis for the earmarking defense but even stepping back beyond before that there's that really that complaint should have gone through the claims process instead of having a complaint against the trustee and his representative capacity as the debtor representing  these want to wait for this long statute of limitations on different causes of actions to run the trustee can administer the case immediately but also you leave it up to the trustee to determine whether it is even worthwhile to