in this case the night of information contained therein there's only a few points that the trustee would wish to make this morning as legal professionals and certainly as humans more broadly we are constrained by the language with you that we use and interpret  the law trying to craft law trying to craft a contract which can fit inside that law i would propose this morning that there are three terms which are subject to so many ambiguity in this case which when defined will result in one waiver of the ri a if a number of rights arises out of either one of those depending on which word seems to arise the contract between the parties in this case which is the contract between dillard's and e t f entertainment network contain an anti offset provision there's no discussion with respect to that no difference of opinion it says that the late payment of invoices will not entitle dillard's will not entitle dollars to offset the link what payment amount f announces that it that it will not be making any future payment at that point ken ken is diversion title to declare the contract over the owners is a title to turn to it's rights under the contract this contract says that they they had many rights i suspect one of the rights they did not how was the right to offset funds do they have the right to declare the contract offer they have a right to claim over each circle but that this contract is now in breach their damage have to claim breach of contract i don't or was it because i thought that when you bring i thought one of the elements of breach of contract action was you to form all conditions required to be formed by you lots of payments and when called if if the consul didn't exactly if he can didn't exactly say we ain't gonna perform any more it sure sounds a lot like first of all the facts giving rise to that have never been decided by wider fact we've got past this one summary judgment we raised tribal issues but you never put in anything that somebody said to  little late and we're going to be paying the good best thing you put in suggested that you were going to pay in fact when consul so well no i didn't say exactly that consul didn't say no we that there we do this unique thing with the word office that which which courts which courts have not been very careful about your lawyers say well lost that means means recruitment to it doesn't mean shut off but not just late but not forthcoming at all it's a little different from saying they're going to be late and i don't mean to stand here and say that they didn't have rights under this contract and they may have rights to claim a breach and to assert their damages i'm saying that in the contract they agreed they agreed that they would not offset funds there were other reasons now arizona law as we said applies this arizona law has its parole evidence rule which like california unlike the trident center case is extremely permissive we should be able to introduce extrinsic evidence with respect to what was meant by that provision how do we get to this provision in the contract parole parole officer extensor cabinet should be allowed to interpret this contract to determine whether or not the anti offset provision in the consul played a fair to make payments at all because there were other parties after all there were other parties i e the venue's in this case which were also going to be claiming money from e t s and that was contemplated we look to the definitions of these words recruitment and offset and i don't believe that there's any ambiguity didn't saying that set off is also an offset recruitment certainly is an offset and if you have an anti offset provision then one would propose that the recruitment would also be wrapped up in the number of it is a turnoff if we look to the preference auction and even more difficult on or argument if you will your own there isn't a case regrettably that says that recruitment is a defense to a chapter seven trustees preference act they say many things about indeed use the words that were koopman involved no element of preference but regrettably that's never been applied to a chapter seven trustees preference action under five forty seven of the bankruptcy code the supreme court has told us in no specific find that that language meant something at all then we must find that it has to be given fact here e d m being wary may very well have been in breach they may very well have said something to the effect of we can't pay you anymore but that can't get to the court as to what the what you've got it done you have an exchange of letters you have you have handwritten notes we have not made a proffer of evidence with respect to this and i and i would very much like to hear the test no need to speak it was resolved by way of summary judgment before any of that was before to say that a breach of contract claim is resolved where the contract itself has an anti offset provision in it and to have no evidence before the court that gives us any guidance with respect to what those parties met seems to be reversible error at least gets us back to the bankruptcy court to find out you know i misunderstood but did you know you go to the district court and say judge look there's no way you can rule on this case until we have sufficient discovery and can put in dock liberations from a b and c to show and you say whoa judges you can't do that because we want to put in parole evidence it seems to me this isn't the right place to make that argument if it wasn't made to do this record and it has high because  put in all this pro evidence you'll see x y z or we can put him prole evidence because we don't have enough time we need to continue the none of that happened here i believe well we did not ask for continuous to conduct discovery we followed the appeal after submitting briefs and did not seek separate discovery just once but i don't believe that i've asked this court of the jurisdiction necessary to determine that trial if your facts do remain with respect to the underlying contract simply because they are  conclude that this contract is terminated because all that is going to be done has been done in other words there's no money for honey and then you get into the n a different crack and i think i think that there's a lot of truth in like iran if indeed the factual scenario came down to whether or not they were outside of the contract and everything that i said for the last eighteen minutes didn't occur then we have to look at the panel needs to decide if we're koopman is going to be allowed to defense under five forty seven c and if it is that then certainly i'm wrong and i go i'm going to i'm going to take a few minutes your honor in twenty seconds i'd like to say that if they terminate this contract if we're outside this contract i proffer to the court that the single transaction provisions  over four months they call help phone calls were not returned when they were able to get a hold someone know what surance is were made the payments would be forthcoming and in fact the contract was terminated on june twenty second i believe it was on june tenth each implying an agreement with ticketmaster which was basically to keep them afloat so that they could start transferring the customers to ticketmaster and in that in the recitals of that agreement the payment and the court recognized that once you get to that point dillard's was perfectly well within its rights to terminate the contract and say we're going to recoup the fees that ar now with respect to whether or not this is a set off or recruitment and off that i think the loss pretty clear as to what the difference is or recoupment is netting out the debts from a single transaction that off is transaction that's recoupment no no question about that single contract cases are pretty much the gold standard for recruitment and it's of recognized this does not need to be a defense to a preference when in fact there is no preference at all the trustees five forty seven action failed on its face because recruitment is template not a preference a separate cause of action from five forty seven five forty seven as for preferences five fifty three is for that office now both say that the trustee may recover they both have the language of  that the bankruptcy court never specifically reached the section five fifty three b calculation and it is unclear whether the bankruptcy court ruled on the merits of the five fifty three argument so i would submit to this court that there's simply nothing to review on appeal with we think it's quite clear that the five fifty three is really a red herring here now with respect to the breach of contract act contract action i recognize the bulk of the trustees argument most your questions were focused on  that i don't really have too much to add to what the court has already said with respect to that i think we have here is a clear indication that no no further payments would be made at that point dillard's is not going to continue to provide services for which it's not going to get paid doesn't make any sense well within their rights to terminate the contract and at that point they can result resort to their common law remedy including recoup certainly appears there will be no further question so i will sit down thank you thank mr marshall  court should have not allowed the doctrine of recoupment and by doing so it should have found itself in the five fifty three number and by fifty three b is the damages calculation when you get into the non recruitment office a category so if my last argument were held to be true that indeed they have fallen outside of the single transaction role by terminating this contract was sitting on some other recovery and you get the five fifty three because that is the damages calculation if it's not a preference or something else and you get into five if you three i'm well aware of the new very fine and with respect we're koopman in five fifty three to get to where i'm headed you have to call this not a recluse you have to do something else and if their argument their argument