appeal is whether or not the court below conducted a trial by affidavit in connection with a motion for summary adjudication in connection with the avoidance of a construct a fraudulent  transfer as this panel is well aware there are really only three issues that a construct a fraudulent transfer will for lack of a better word deal with factual issues one is was the value received by the debtor reasonable was the debtor insolvent and or the exchange of value which is what was given and what was received was at reasonably which is sort of two to factual components within one element as it were in this case the only issue that's really at issue is whether or not the debtor received reasonably quibble and value or whether it gave reasonably equivalent or whether the assets were had any value at all as we said worth in our brief we think that the assets that were transferred a group of movie scripts and movie development projects had absolutely no value and the reason they had no value is a brief fourfold first the scripts could not be developed because there was not adequate proof of title title to the scripts to the evidence that was a deuced as to their value this agreement with fabric doesn't really prove anything because it was entered into a year after the transfer and in any  the fabric principal has testified that he would not have entered into the transaction at all but for the fact that my clients contributed additional assets to create some  wes but not least is movie scripts by their very nature have a very contingent quality to them and we believe that that contingent quality requires the debtors in this case or dead or more specifically debtors in possession in this case to demonstrate that there was some reasonable likelihood that the contingencies needed to create some value for the scripts were likely to happen at some point in the future so that you could discount that present value so we believe that the assets transferred and it's all in an argument yes a gesture had no value is the second point is is that we believe we gave my client advanced approximately one point five million dollars to the principle of the cooperation  who's referred to as the c g in our briefs and e c g represented in connection with those transfers that the money was going to be used for the corporations they weren't it wasn't used for the corporations nonetheless as we set forth because he was the president of the corporation the director of the corporation the sole shareholder the corporation we believe that those assets evidence of an obligation of the two debtors was a debt the second point is that in two thousand and fifteen there was no doubt that with two thousand and twelve there was a note that was executed after all of these advances had been made once that it happened mr izrael yoichi delivered the note at the time that he received the assets we believe that that delivery even though the note was not negotiable instrument is evidence to demonstrate objectively that there was an intent to cancel the debt and that the cancellation of the debt is sufficient to create value thereby creating a tribal issue a fact both that of the value received and the value of the assets themselves and i have anything really much more to say on that it's pretty straightforward question we think that the court below indication what i would consider to be a trial by affidavit and took a took upon itself to weigh the evidence in making certain it's making certain rulings there's also another for i think very fundamental sort of technical legal flaw in the trial court's analysis that is the trial court  very heavily on excluding certain evidence based upon the parole evidence rule all pro evidence rule is a is as as we all know is not a rule of evidence it's will contract interpretation and two it can only apply as between two parties to the contract well the debtor input and are not parties to the contract they're bringing the fraudulent transfer action in this case as a representative of the bankruptcy estate who is not a party to the transaction or the assets were transferred to my clients from the debtors and i think  judge hammon relied very strongly on that she also write very heavily on to the pro level its will which is the an integration clause which basically says you can't consider anything else in the contract and in connection with interpret in that we're not interpret in the contract what we're interpret in here is whether or not assets were transferred the value of those assets and the value of the consideration given to those assets all of those fall without any consideration of either counsel can i ask your question certainly this is a constructive fraudulent case not actual fraud is that correct that's correct identifies and says this is a value that's been given in this contract if yes your honor that's exactly what i'm saying because the the nature of a fraudulent transfer transaction is to look beyond whatever the contract might be what it does is it looks let the value given and the value received and it involves a claim we're not in bankruptcy if we were in the question i have is is a little different than not only are we saying that had never applies in that issue and recently a value are we saying that it doesn't apply based upon the facts of this case based upon the agreement in this case i would submit your honor for certainly on the facts of this case but i would say as a general proposition i would say would not now there might be circumstances  come just have to be speculating where there could be a set of facts where the question of the actual performance of the contract in the value given under the contract requiring interpretation of the contract but i would be speculating with does not apply in this case and why's that because we're talking about the value of the assets we're not talking about interpret ing the parties meetings under the contract that there's the bankruptcy state has two sets of rights one that the set of rights that it gets under five forty one which of the rights of the debtor itself and to the rights that it gets under sections five forty two to five forty nine which are the rights of the state which as are often described as the debtors the trustee or the debtor in possession steps into the overshoes of of the debtor and has rights be on the debtor those are the rights that are being  in here those over she writes we're not litigating the meaning of the contract i certainly would agree that to the extent that one wants to argue that there are statements in the contract that go to what the alleged value transferred or not transfer is that those are admissions and they're not binding but they're certainly admissions certainly there has been a representation that the order was given but ten million dollars was received in reality that's what that's what a bankruptcy court should be looking at the reality of the transfer because it's all viewed from the perspective of the creditors i think i've gone past my  but after no three cats appearing on the debtors in this case we question in this case is whether reasonably equivalent value was paid everybody agrees that's the narrow thing at issue and it's a three step analysis that's clear under the baps decision and pringle and judgment always decision and we look at three things was any value given at all that's number one number two if there was value i think throwing my t early in the argument supported stay at your moscow number two your honor is whether the value given if it was given was in exchange for what was transferred that's number two and finally number three whether what was transferred was equivalent in value to what was what was received by the debtors and so the first question was value given and if we don't get past the first question we don't even need to proceed to the other steps or brobeck makes that clear so we have evidence that there was no value given we have the assignment agreement itself it's fully integrated and it says the sole consideration for this transfer is a dollar and undervalue is not well no it's not an concede it's not value so in their brief i may not be reasonably equivalent value or it might but suppose the assets transferred were worth a dollar well there's a distinction in the cases your honor and that is between sufficient value to the level of mere consideration to support a contract like a peppercorn or reasonably equivalent value and we've cited several cases that distinguish between the two we don't have to look at my case or take my word on it and the appellant's opening brief says a page for the value was a dollar which is nominal so they concede it was nominal value and then you get into the cases that say if i were to sell you a can of coke for fifty cents you wouldn't ignore the fifty cents just because it's only fifty cents right  context i wouldn't care ok so that's right but here where the value was a dollar and it's conceded that that is nominal in the cases tell us once it's nominal you don't get beyond that step we don't have to go any further the key question though assuming you get beyond the first step is was it in exchange because what they're arguing is there was this cancellation of a one point five million dollar note well that standing alone doesn't get them there it must of been in exchange for the transfer of the assets and so when this is really critical because there is no evidence it was an exchange you know we know from brobeck in the other cases that in order to have it be in exchange it either has to be at the time of it can't be after or if it's coming later it must have been bargained for in the initial contract we have the initial contract and it's not that long and we know really clearly in there it doesn't say later on you're going to cancel some debt even though the debts mentioned so clearly it wasn't bargained for as part of some later transfer so the question is was it really in exchange for so we look at the temporal component and we have we don't have the words of brobeck which say if it's after citing cawley or if it comes after it's not in exchange for it wasn't bargained for we have the agreement which tells us really unequivocally it wasn't bargained for as part of this deal clearly even if it happened but not only that we have the words of their  vittorio gori himself and his declaration saying i received it after quote after that's his words the same words used by color and and brobeck it came after it wasn't connected to and clearly this integrated agreement which shows us everything that was bargained for forget about the true nature of the transaction for a minute but just what was the bargain was this bargain for the answer is no now we have a lot of other evidence to that this debt wasn't cancelled we have the no right being transferred without even the knowledge of the person who was holding it later yeah yeah you've got other evidence that conflicts with that so i'm looking at conflicting evidence in summary judgment motion and thinking why are we having why do we have a summary judgment ruling why don't we go to trial on this it seems like there's disputed issues of fact here i'm not sure what the conflicting evidence is in favor of the fact that it was quote in exchange for the assets is  just the mere delivery on its own the delivery of the no so what we have here though well we have proof the claim though filed under penalty of perjury saying i'm owed the money those are sitting there today right now on the docket to prove the point attaching the note and saying i am owed all of this money plus interest plus i have the right to use it as an offer you keep pointing to evidence in favor of your position that doesn't necessarily persuasive that you that should have been granted summary judgment on those issues i mean here we have the attorney representing the film company that it's produced a bunch of really iconic she clearly considered all of the declarations and she considered she has a separate section her order was the no discharged and she concluded it wasn't and she even cites to the declaration and footnotes that referencing the return delivery of the no and this isn't really a battle of affidavits in the sense that we put in some declarations and they put in some declarations everything is done off of their declarations the agreements they signed there is no battle here we've taken their testimony and remember to this is not their position that that that they had that they entered into an agreement where they made a loan for one point five million dollars and they got to security for that and basically said well if the loan isn't going to be paid by the state these assets are going to be transferred to me and that this second this first assignment that we're looking at is if actuation of that sort of clause of the first loan agreement and then what they want to say is and by taking the assets are greedy counsel did that and you're saying no that's not true you never agreed to cancel the dad there's other evidence to point to that are those disputed issues of material fact they need to be resolved and the only way you get around that is by saying well the pro have grants prevents them from offering this evidence of some kind of other who remain or additional terms there contrary to the terms of the actual integrated agreement please proceed i think parole evidence certainly prevents them from arguing that but it's not the only argument or not the only way you get there because the other way you get there is you look at what they've said and what they've done it's significant that they filed the people claim it's significant to that in their initial briefing all the briefing in the bankruptcy court this argument that they're raising now for the first time and which really should be raising for first time in their opening here is that ok there's no subjective intent to cancel the debt and objectively under the commercial code it wasn't cancelled right that's clear as day as a matter of law returning an original of a non negotiable instrument doesn't do anything for you not only that his testimony was that he didn't even know what that rule was at the time he returned it he didn't read and return it himself somebody else returned it returned the original note you have all explained to me in the commercial world that we're talking about why would you transfer the script rights to some iconic italian movie for one dollar why would that be a commercial transaction i don't have the viewpoint into what mr corey was thinking other than potentially to attempt to put them out of the reach of your creditors but we're not here on an actual fraudulent transfer it's just constructive fraud all i have is the agreement that they memorialized with assistance of counsel and the fact that this one point five million at some point was cancelled but it was either after or as you've described it it may have been long before write the note dates back to two thousand and twelve the transfers and twenty fifteen but the law is it must be in exchange for a critical standalone and element and here just saying that it happened is not enough it had to have been at the same time as part of the bargain that's what the cases say and here we know what the bargain was and clearly the parole evidence rule and they can see this in their brief tells us what the strictly applied you end up with absurd results unfair results and tell me why you have occasion to bring evidence room to say that the script rights to for these films are being were a throw away asset that's still their argument today in their argument all along and so they paid no no consideration or this is not what they conceded is nominal nothing consider that the judge didn't buy that and neither do i but  that the assets are worthless yeah i know i don't know what they're worth i mean i mean the couple fairly famous movies involved in the in the scripts and and important movies in terms of the italian movie industry and and so to say that the script rights to those films have no value is kind of i mean maybe maybe not i mean we may get better movies coming back someday maybe  or i think the other issue is this this entire argument about the parole evidence rule and it's in a plucky in a place i went back and looked at the briefs down below this this morning it wasn't raised at all in their briefs in the before the bankruptcy court and this argument that it doesn't apply to fraudulent transfer was not raised i looked at the transcript was not raised below i've looked at the appellant's opening brief to see was it raised there as it should have been not raise there either i look at this  guidelines november twenty seventeen edition generally an appellate court will not consider matters that are not specifically indistinctly argued an appellant opening brief and it wasn't there even those clearly at issue the pro evidence rule was part of judge hamdan decision or kind of a double knowledge to i give you these assets where you can see that that would kill your case no it depends on whether they actually paid it in connection with the transfer i'm submitting a contract that says receipt where of his hereby acknowledge the recital incorporates says the money has been paid and you look past the recital in that circumstance i would your honor because i would get the prongs to the analysis and i would say it was what was actually given to me in exchange of heart of this bargain and if the answer is nothing if the answer is four billion dollars and i've clearly lost but if the answer is nothing was in exchange at the time that temporal component then no i'll change  change my hypothetical i acknowledge receipt right here in the now of four billion dollars in exchange for the assets i'm giving you an inch and here's the assets i'm giving you would you agree that that last idol would spike your case even if it were false no your honor why not because you still have to because i would get to prong three and then i would look at what did i actually get and how do you get past the evidence point well i go to the true nature of the transaction ok so why don't we do that when the recital is the considerations only a dollar because the true nature of the transaction here is missing the in exchange to coral component and the only evidence that there was a cancellation of the note is not even as tony that that was the intent it's the opposite i think you've just walked away from the parole of ins rule i don't see how the parole evidence rule still factors in the analysis you're just giving me i think the parole evidence rule tells us that what the bargain was the true or what the case is called the true nature of the agreement right so in this case it's a dollar i'm stipulating to my pathetic goal where it's four billion dollars and it comes right out and says it really is four billion it's really paid right down to really change and i believe when you get to the third prong of what was which is kind of the true nature prong what was that actually received so why can't we get to that third prong when it's a dollar or five dollars or one hundred dollars of where the assets worth more than a dollar and for that i just rely on their testimony write their testimony was these assets substantially increased the value of things i already held to me that says this had value to a buyer out there and we know in bankruptcy court you only need one buyer that thinks these things are worth something and there were something right we don't give away assets just because they only have value to a buyer so if i only had to get over the hurdle of where they worth over a dollar putting aside all their testimony about what it's worth what it interest in g and the operating agreement says all of that the fact that they can see that it had a lot of value to them means is worth more than a dollar and more importantly the court can take judicial notice of this because we just filed it in the last set for december so we have a third party buyer saying i want an option to buy one of your assets and i'm willing to pay you just for that right and the payment is more than a dollar so thank you thank you counsel your time so thank your hon you have some time four minutes thirty one seconds thank you your honor i like to go back to the the notion that at first blow the notion that no value was given by my clients for this transfer there's two there's two issues issue number one is was it given in exchange for the assets or the note was transferred physically at a at or about the time that the transactions took place it meant maybe after not after could mean a day after the after could mean three weeks but we would also point out to your honor as as as you noted that the original agreement said you know if you don't pay this million dollar million one point five million dollars but able fifteenth april first two thousand and fifteen then you know you have to give these assets back in exchange for that money that was given before and based on that we think that there is a it at a minimum a tribal issue of fact as to whether value was given in any event it was given at or about the time all we have to prove is that there was an intent to cancel the note that was made that argument was made clear in at we're all argument in front of judge him we made that very very specific point i tried to explain to her hon that basically it's kind of like a pair of shoes one shoe by itself isn't worth much if not arguably worth nothing to shoot pairs of shoes are worth something that's how my client perceive the value of these didn't have any value and i think another point here which is glossed over by the of putting pelleas in there in their brief is that these are contingent assets there was no evidence the contingencies were met to demonstrate whether they had any data you at all and what it with tape for the contingencies to be met as we said these assets are more in the vein of a corporate opportunity and if you have no ability to do what it takes to take advantage of a corporate opportunity the opportunity has no value so if a debtor can't take advantage of a corporate opportunity and it transfers the corporate opportunity  there's there's no there's no fraudulent transfer fee quick question the perspective of the creditors they're no worse off before the transaction than after the transaction have it that's basically what i have to say if that the court at the p