thank you mr chief justice and the it please the court my name is alexander birch and i represent appellate u m p bank serving as the administrative agent for approximately forty years known collectively in the in this lunar landers before this bankruptcy the lenders provided the debtor in energy and its affiliates nearly two billion dollars to fund its operations those negotiated loans were secured by the debtors oil and gas assets at issue here in this bankruptcy proceeding is whether the limit lenders allowed fully secured claims include a claim for post titian interest at two percent plus the base rate which in short hand we referred to is default interest reversal of the lower court's decisions by this court is required for three reasons first article three b three expressly allows as a fully secured claim under section five zero six b of the bankruptcy code the lenders claim for additional post petition interest calculated at two percent less the base rate notwithstanding any other provision of this plan to the contrary and not subject to offset avoidance or disallowance for any reason second independently the confirmation order also allows the linares claim for the vote interest by allowing all allowed secured claim for default interest it seems like to tell me where i'm wrong but it seems like your argument in a nutshell is that the plan and the confirmation order basically bootstrapped in the proof of claimants so your rights are what you seek is to have simply the rights that were set forth in the proof of claim that's exactly right the the plane and the confirmation order do bootstrap in and incorporate the proofs of claim specifically with respect to the definition in the plane that controls and that is the definition of linda claims i've given the court a handout which for ease of reference has the relevant provisions the first three tabs are those provisions that are actually in the plan or incorporated in the plan type one being the proof of claim so you're completely unimpaired by the bankruptcy court proceeding i mean your proof of claim is includes all of i assume would include all of what you believe is due to heart it's a great question we're not unimpaired all of our per all of our claims are allowed as fully secured claims but some of those claims get thrown into different terms to the exit facility loan agreement so we're not receiving all cash and everything we've we were entitled to we've got different terms a different obligations coming out of the bankruptcy that affect our prepared bankruptcy position so we are impaired claims the bankers who claim itself says we are impaired claims and there's no dispute among the parties whether or not elin lenders are impaired claims the disclosure statement filed by the debtor says we are impaired claims so that i mean that that is not an issue at least that has been raised by any party and the banks the plan itself shows that through the excellent documents that we are actually impaired claims  place to begin this court's analysis is with article three b three of the plan the reason we know this is because it begins with the notwithstanding clause which which is a superordinate in clause in that clause states notwithstanding any other provision of this plane to the contrary insists narrows the supreme court stated that the provisions of the notwithstanding section override conflicting provisions of any other section with this circuit on at least four cajuns as cisneros for this direct proposition and i'm sure as as the panel knows at least two of those decisions were joined by members of the panel and i'd be remiss if i didn't actually bring those up to the court the first the second being us be a washing a two thousand and fifteen decision joined by judge southwick involving a notwithstanding clause in the statute in both cases the notwithstanding clause was the deciding factor as to why that provision is in for it informs the reader and this court where to begin and quite frankly end its analysis after all if any other provision in the plant contradicts three b three the notwithstanding clause guarantees that three supreme over that provision it overrides and if there is no conflict in the plan then everything else in the plan must at a minimum be consistent with article three b three so if the court r allows did i mean everything i mean you have not exchange regarding the hardest not just that they were impaired claims there were other restrictions or limitations on what you were to receive correct as correct so it seems to me that is  why isn't it a reasonable interpretation of this provision three b cetera that when it lists one point nine three billion  on account of unpaid principal plus unpaid interest fees and other expenses that that as not just a sloppy way a listed that was an intentional way to list what interest was to be paid is there anything in this agreement that  would explicitly say that unpaid interest not not in this provision but elsewhere includes all forms of entry i mean it's a distinction elsewhere between default interest and if interest running on on on the principle right and your honor i think i can address answer that in two separate ways and so many things you forgot what where the question was right on i'll see if i can unpack that your honor with respect to unpaid interest as as you noted there's no express limitation as to what interest applies all in all it says is an unpaid interest well as a preposition interest as opposed petition interest there's no limitation in arkell three b three itself and certainly the  debtor knew how to make that limitation it had it intended to do so you look at the class a three lenders are the excuse me the class a for lenders that follow it says unpaid interest and then in apparent that it will it say it's what the interest is twelve percent times the principal didn't do that with respect article three b three and i think the reason why this court need not concern itself with that is because the little lender claims are allowed as fully secured claims under section five zero six b of the out what interest you is required under under five zero six big you look to the parties pre partition loan documents and here it includes default interest indeed southwind offers a presumption the default interest is allowed for over secured creditors such as elin lenders in this case is going to find that the un paid interest in article three b three somehow does not include default interest would contradict the south in decision f certain not setting aside it would contradict this is now as opinion from the supreme court regarding limit lenders were assured when reading this provision and this provision never changed from the very first draft of the plane attached to the disclosure statement not to over two thousand and sixteen i think some four months before playing confirmation  and and i said a couple things i want to come up with one right now but it does seem to me is a perfectly german way to read the two together in the way that your opponents are reading this and the way the to the bankruptcy judge do so why is it that when you have just a single word interest not default to whatever else you say without limitation regardless a single word of interest in three and then in six you you see that notwithstanding anything else in here we're not going to pay prepay we're not going to allow the payment of default interest  as set out in these pre partition documents things me as pretty red flag that ought to give at least some concern to your client but there's no concern whatsoever judge southwick and here's why but there's back to article six if it begins with unless otherwise specified in the plan the only other place in the plan that could that could refer to would be the class a three lane landers to read it any other way would be to simply read out the unless legitimate way around it you're right that there is no legitimate way around it your honor there's no correct way around it which is why we're here before your honor in the panel so article success is no impediment at all to the default interest claim remind me when did this issue first come up in this home calendar negotiation and execution of this great mike in our non default did not come up until after the draft of the plan says you get all of your claims are set forth in your proof of claim and in tab one the proof of claim says you get default interest at two percent plus the base rate there's no need for the ling lender should raise the issue we found in a proof of claim that was not objected to so why why raise a red flag when all of your claim to separate in the proof of the claim are going to be allowed in this plan the opinions below create unnecessary confusion about the obligations of creditors secured creditors and debtors in chapter eleven bankruptcy it also unnecessarily strains  any reliance on a debt on a debtors proposed claim treatment provision as well as the plain language agreed to by contracting parties in general and other words the plan must mean what it says in this plan notwithstanding anything to the contrary the linares get their default interest claim as a fully secured claim to find anything else would be to find that the little enders claims are something less than fully secured in contravention of the actual claim language of this plan and the facts of this case to find that six f controls despite three b three s notwithstanding clause is to contradict supreme court law and the law of this circuit with respect to how or the efficacy of these notwithstanding provisions reversal required to enforce the plan as written and the parties pre and post petition expectations and only reversal can remedy the conflict and confusion of the law that the lower court decisions in this case have ca good morning your honor is in may please the court erinn murphy on behalf of the apple is the bankruptcy court correctly rejected the lynn lenders eleventh hour request for thirty one million dollars in default interests article six after the limb bankruptcy and squarely default interest instead they rely only on extrinsic documents which is precisely what six that says they could not do they alternatively argue that alter that article six of doesn't apply to them because article three b three contains this notwithstanding clause but it's clear as a matter of new york law which everyone agrees governs here the notwithstanding clause does not supersede everything in a contract it only supersedes those provisions with what there's an actual conflict and  me part of your argument rely on fact that doesn't refer to default interest and three but it doesn't hurt in terms of trying to get whether this is clear free standing in your mind or whether we need six we don't think you need to kind of go down the path but there's a bankruptcy court case called john kline that discusses how default interest distinct and if you want to fund interest you should be providing a kind of a specific separate request for default interest so we would take the position if we didn't have six f that there was still a problem with just kind of vaguely referencing default interest in a proof of claim rather than making a separate request that says in addition to a you know what we're actually due on our principle and all of that we also want  here i do think you have to look at the whole context of what is actually being claimed what they're asking for and what the plan then allows and we would submit you know even without six after that we don't think it's clear enough that they were busting the people to interest particularly when you put this in the context of that cash collateral order at the outset of the proceeding that had said you know unless you specifically separately claim this you're not going to get default interest but all of that said i mean i don't think it would make a whole lot of sense to completely ignore the for purposes of this plan and as as my friends on the other side going to the fact that even in the absence of something in the plan that speaks to it yes you'd have a five or six b question of whether you get default interest but it's very clear and a chapter eleven  extent the plan is referencing things like underlining claim agreements etc that's not good enough the plan itself would need to specifically say that you are getting default interest and i don't think anybody really disputes that as to any of the other  creditors that were at issue in this plan i mean there are other creditors here who had underlying loan documents under which they could have gotten default interest but six after precluded them from even from from being able to assert that even though their own definitional provisions in the plan referred to their claims at refer to the claims as set forth in their underlying loan documentation so if there's the country into what my friends on the others are saying that they're not the only winners in this case that had the underlying don't loan documents or proof of claim referenced in the plan those kind of documents are referenced all over the place in the plan and six after creates essentially this rule of construction and this rule of how it's going to operate for all of the creditors which is that's not good enough it needs to be the plan itself or the confirmation order that refers to default interest and here all you have is that generic reference to unpaid interest in the plan you can see that same term in other classic creditors and if you just look at the beery next provisions on the very next set is a page of the plane and the class for creditors the classified predators and says that they were getting their claims as allow them out of principle in unpaid interest and nobody thinks that that meant they were dating default interest just because the plan generically said unpaid interest even though if you looked at the class five creditors loan documents you would see that they are unpaid interested in food default interest six after precluded that so i really do think you know assuring us that i mean i don't overstate that but you are certain that some of the others would have it and default interest end there i claim my understanding is that the class five creditors that were covered by three of the five had  default interest in their underlying loan documents as well in syria and they said they were not the only creditors here who had default interest in their underlying loan documents so i thought that that's why you needed a rule of thumb that was going to apply to to all of the documents here because bankruptcy court there said that you would need to separately claim that the bankruptcy court here didn't adopt that rule the court said i don't think i need to adopt a bright line rule for purposes of resolving this case but it would be do think it would certainly be open to this court to  to resolve the case by saying that a proof of claim wasn't good enough even if they incorporated it but that you know our principle argument here is you really don't need to get there because six after tells you that it needs to be the plan itself or the confirmation order that says something about default interest and as we pointed out the plan doesn't say anything about people to interest to answer the question you asked earlier there's nothing in the plan that defines the term unpaid interest to include a default interest or any other type of interest so you know if anything the fact that six asked very clearly uses all of these different terms would be inconsistent with reading the generic term interest to include every type of interest that six that said needed to be dealt with specifically and separately you know the only pair of litigants who've appeared in front of panels and fifth circuit you say documents accurately clear but you have opposite meanings that you give the clear document if it's ambiguous what else could you tell me i'm sure i think that if there were ambiguity in the plan here i mean i think one of the first places that you would look to understand the context here is the disclosure statements which did not include a default interest the bankruptcy court explained in its opinion that it did not understand the disclosure statements to include a default interest when it confirms the plan and it did not understand itself to be confirming a plan that included default interest and i think it is notable here that when they asserted for days for the first time ever before lane was about to emerge from bankruptcy that they believed they were entitled to another thirty one million dollars it wasn't just limit that responded by objecting to that mean that the creditors who had approved the plan responded by saying what are you talking about we approve this plan and there was nothing that we understood of the plan or the disclosure statements to ever indicate that you were getting this and ultimately does what the bankruptcy court itself and it up finding which is that it it did not understand there should be default interest including here so i think all of that is enough to get you there even before he would go to end of the deposition testimony and the other things indicating that they they they basically concede that they never raised this with anybody until well after the plan and the disclosure statements and all of these documents were out there  leaving everybody with the understanding that there was no default interest owed to them under this plan so i think that you know all of that points in the same direction that we believe the contract language points here as well which is new york law and that plea that case very clearly explains that a notwithstanding clause does not mean that that provision supersedes everything else in the contract it means it supersedes things as to which there is an actual conflict requirements and the tenth requirement was that they had to file a proof of claim by march first and then imagine you had another provision in our plan that said notwithstanding anything else in this plan to the contrary creditor class a can require and i can recover as long as they filed by march fifteenth now you know at some like high level of generality you could say that requiring those class a creditors to do anything other than file a proof of claim by march fifteenth would be inconsistent with that provision in the notwithstanding clause but i don't think any court would read that contract to actually mean that all of the nine requirements in it that had absolutely nothing to do with the filing date were somehow now flowing out the window and the whole thing was governed by the fact that they had a different date for filing like that's because what matters is whether you have an actual conflict that the notwithstanding clause needs to resolve it's not a clause that tells you you don't need to look at anything else in the plan now here there were some provisions in the plan where there were actual conflicts so if you look for instance at our recall seven on of the plan that provision says that as a general matter all of the claims in the plan are subject to disallowance under certain provisions of chapter five of the bankruptcy code if you look at article three b three it specifically says that the and wonder claims are not subject to disallow inside the  you have a clear conflict the notwithstanding clause would kick in and would tell you that article three be three governs you can see this also as to set off there's a provision six g that generally says that claims are subject to set off whereas article three are not subject to set up so there were conflicts here that were you know that other creditors reading this plan would look at the plan would understand that those are conflicts would say i see there's a notwithstanding clause it tells me that that conflict gets resolved in favor of the and wonders the problem with their argument is there's just no conflict of that nature with respect to this issue of default interest nobody would look at three b three and understand it to be specifically saying that they're getting this kind of default interest in a way that trumps what six f has to say and that was borne out in reality by the fact that when they said they thought they were entitled to this everybody else said what are you talking about you know so i think that is all very consistent with this notion behind notwithstanding clauses that they are kind of creating a provision that rises above everything else in the plan they're creating a rule of construction that tells you to the extent necessary they don't this clause tells you this provision trumps and i would predict going no into my friends on the other side really like to refer to the school governor statutory construction book on this if you haven't had a chance i'd i'd encourage you to go take a look at that provision because what it actually says is you know that the notwithstanding clause applies merely to resolve conflict and says you shouldn't go digging around for a conflict that doesn't exist just because a statute has a notwithstanding clause so i don't think the not withstanding clause here really gets them where they want to go six f continues to govern as to them the same way that it did as two of the other creditors in this claim and they simply aren't entitle to this  default interest on top of the nearly two billion dollars that they already got under this plan unless the court has any other questions happy to see the rest of my time a couple of brief points in rebuttal number one there's simply no way to read article three b three as not allowing default interest of reference section five zero six b of the bankruptcy code it by itself is sufficient the definition of lindor claims which just had three to this court's oral argument and shows the winner claims are allowed as set forth tab one is the proof of claim language that is at issue and highlighted for the court is additional interest continues to accrue at the post default rate of two percent plus otherwise that's the default interest we're talking about that's the interest that is incorporated into article three b three if anything else in the plan provides otherwise it by definition is a conflict and one of the conflicts and it applies to every other creditor in the plan your hon just not to the secured when lender claims it has effect it excepts itself from at least one at least something in the play and if you read success if you're on notice take a look elsewhere there might be something specifically in the plan that provides other wants to give that phrase any meaning you would have to enforce three b three as allowing default interest and i w address this notion that the claim of a waiver that this was raised late that somehow we had an obligation to do more than what we did in this in this case that's simply not true the facts don't don't show that within forty eight hours of the initial filing of the petition the interim cash collateral order expressly reserves our right our being a little interest right to assert their claims for default interest plan as originally drafted and i know counsel here said that something is nothing the disclosure statement references default interest that's simply not true because the draft plan attached to the disclosure statement had the the conflict notwithstanding clause resolves that there can be no ambiguity in this case either through success which says unless otherwise specified in the plan or through three b three which says notwithstanding anything to the contr so any ambiguity that would be created is the result by these other notwithstanding or the subordinating clause unless otherwise provided in the pla council also address the word specifically the adverb in unless otherwise specifically stated in the plan in success there's no case that i've been able to find and i've looked that says that specifically use of the word specifically negates the incorporation my reference doctrine simply not the case more than that it says specifically in the plan and incorporation by reference that the whole doctrine is intended to incorporate something into that document it's part of it so the proofs of claim for the little letters are in the plan that language is in the plan the debtor could have drafted another plan it didn't