i'll present the entire argument for all the films and i reserve five minutes rebuttal time and hopefully i won't run into it we have four main actors in this case tri state ethanol which is commonly known as t s e tri state financial which is commonly known as t s f centers federal credit union and a group of twenty investors or twenty people who put up money and form t s f two finance ts ees bankruptcy and i'm here today because my clients and the is cannot fathom how after the trial judge found that a trust was created in this case based upon substantial evidence and credible witnesses a successor judge reviewed only the transcript and the same exact evidence ruled that we didn't create a trust and rule and found on the same facts that our witnesses were not credible the successor judge judge's ruling is based upon the exact same evidence and she made no finding that the trial judge's factual findings or decision were clearly erroneous or created manifest injustice was had in this matter back in october two thousand and twelve the trial judge based said based upon uncontroverted evidence a trust was created and he he stated the factual finding of the ownership interest in the funds in favor of the defendants other than centrist is based upon the credible evidence presented by the omaha group concerning the creation of t s f including the purposes of its creation the intent of the members of the omaha group when the original monies were provided to t s f from the omaha group the manner in which the money was distributed to ts e the records concerning the individual contributions of each member of the omaha group the minutes of the meetings of the omaha group and the investors of ts aff the correspondence from mr jan dran to the omaha group and the investors the fact that the original distribution from the chapter seven trustee in the ts crapsey in the amount of seven hundred ninety three thousand dollars seven hundred ninety three thousand six hundred fifty four dollars and forty two cents was distributed to each member of the omaha group as a return of loan funds with no objection from any investor who was not a member of the omaha group and by the testimony of individuals who created and operated t s f both before as an entity it purchased e s e and after it did so i think that clearly sets out the facts here as a result of the trial judge's decision this case was appealed by the the bankruptcy appellate panel remained at the case for further rationale on issues of the stoppel and release i don't as such there was no final decision that  had occurred in the case and it wasn't the baps decision was not appealable the pan to this court and also the remand was unnecessary because the trial judge need to decide because we've this thing's been going on since two thousand and twelve it's been up to baptise weiss and district court want with and baptise never made it an appealable decision it's never made a final decision and that's why we went to the district court so we could finally get a fun final decision also on issues of release the trustee openly admitted at trial on the stand th releases didn't matter in this case they weren't relevant now the successor judge once she got the case due to the trial judges retiring reversed the entire case mandate and exxon specifically states only a mandate can it's change the law the case really look at p c h associates we have a situation where it we have a co equal judge basically successor judge reversed a co equal judge is your argument that that was error or that you're just you're just highlighting what the original judge did to show how judge hastings erred and she reconsidered her own assessment is that a different analysis i don't think she could do that for the simple reason that before once a law the case is it been established little earth we have new evidence which we did not in this case or we have a clearly erroneous decision that results in manifest injustice let me ask you about our usher re case if you look at us free the only thing reconsidered was damages and that was specific in the remained to in back to the court the trial court here they were  manned was for rationale on a release and a stoppel it wasn't to reconsider anything else exon says the mandate it's only thing that can change the law of the case on  also says that much gives law the case where it was appealed and there was no it was neither affirm nor reverse it was not final but you know because it was not reversed in the mandate by the ba the first appeal the law of the case was established by judge mahoney's ruling i think if you clear reading of p c h makes that clear and if you look at what happened in the four cases the judge cited judge hastings usually only damages were reconsidered in accordance with the mandate x on a mathematical err in calculating bond data was reconsidered and exxon specifically say that any fact determined below could not be relied could not be changed also and if you look at the bartsch case it's a it's states mandates mandates must be strictly followed and settled issues can't be related gated and in bart march the only thing was a math mat that was changed was a mathematical err in character in calculating the damages i believe and if you look at this the meyers case it states that of the case however it's stated that subtle issues can't be related gaited must be here to the two decision of the earth earlier proceedings meyer specifically states the law of the case prevents the real litigation of settled issues in a case and requires courts to adhere to decisions made an earlier proceedings in order to ensure uniformity of decisions protect the expectation expectations of the parties and promote saddled when it was when it when it was appealed it was settled by the trial judge's decision it was appealed to baptise that did not change that decision therefore establishing the law  be settled if you look at p c h the exact same thing happened in p c h associates which is a second circuit case so now the district court yarn you about just so you know would you feel free to continue ok the does he work really deferred to the bat court i think that this flies in the face of the quotes in miers simply because it does not create a situation where judicial economy occurs we have repealed we have we have three bankruptcy court orders in this case and five years have passed since a judge trial judge's decision and that in the case is becoming jarvis from jarvis and it's creating a bleak house that's not economy secondly we have no uniformity we have two diametrically opposed trial court decisions bankruptcy court and the trial court are diametrically opposed how is that uniformity uniformity would have been would have occurred had the judge ha judged hastings followed the mandate and only decided on only presented rationale on issues of a stop and release if you look at the if you look at this entire case which i think under house you have the right to do that and you have the duty to do that the appellate supreme prevail upon the law and the facts the facts show that the intent was to create a trust testimony tax records only had barely got title because it was a trust the bank information centrist did not even rely upon or consider this these funds to be collateral relied upon she violated the mandate she disregarded law the case and she changed the law the ruling in the case without any new evidence a showing of clearly erroneous decision resulting in manifest injustice and justice affirming this judge hastings ruling would create a situation where appellants beneficial interest would be converted into a gift to centrists who basically didn't even consider this these funds to be collateral secondly it would create a situation where the trial judge could do what this court couldn't even do it could reverse the findings of the trial judge without a finding that that trial judge was clearly erroneous based upon this this court should reverse the district court and the success or bankruptcy court orders and find that the funds in question are property  and not surcharge these funds for payment of the trustees be in accord with the law versus versa sigel because the funds are not part of the bankruptcy state there's no further questions i'd like to union a federally chartered credit union the bankruptcy court found that the appellant's failed to prove by clear and convincing evidence that an express resulting or constructive trust had been created in relation to the tri state financial funds at issue the district court found that the bankruptcy court did not clearly error in doing so the banks the court addressed the abundance of evidence contradicting the appellant's claim in its thirty seven page order tri state financials and the a conduct and statements contemporaneous with and subsequent to the transactions directs the conclusion that the appellant's contributed capital or loaned money to try state financial and then try state financial loan money to try sta there is not a single document prior to appellants december two thousand and nine demand that refers to a trust relationship there is not a single document accounting record communication or party action which is inconsistent with the debtor credit or or equity investor company relationship yet there are a number of documents accounting records communications represents impatiens to the i r s and bankruptcy courts in actions that are entirely inconsistent with the trust relationship appellants do not challenge as in correct a single fact the bankruptcy court judge hastings found only the weight to be given or the legal conclusion to be drawn from that fact appellants do not seriously challenge the conclusion that judge hastings opinion standing by itself does not clearly error in determining that appellant's did not clearly and convincingly prove their case appellants dedicate less than two full pages of their main brief to challenge any of the district court give that situation particularly in this situation if any right now it should and particularly in this situation because there was would appears to be while they had the right to appeal the last occasion to the district court  properly took notice of when it was given deference there was what appears to be some form shopping because what's clear is had this been appealed as the route it had been the prior two  occasions it would have been before the bankruptcy appellate panel and i would assume opposing counsel would acknowledge that were he to make the same arguments to the bankruptcy of petal panel that he made to the district court that no you really don't understand your own mandate it would rule as it did on the second appeal that look this is the scope of our mandate we didn't rule on anything the district the bankruptcy court was free to reconsider anything as part of its prior ruling and in fact it said it's still completely free  resolve anything so in that context particularly your honor it should give great deference to its own interpretation of the scope of its mandate will address the law of the case issue and what i'm most interested in you also had a plethora of him and with a part of that particularly and the bankruptcy appellate panel referred to it specifically is that there was no express or implicit adoption of judgment  same status as the bat and most respects it right because it asked x as an appellate court it's reviewing whether or not the bankruptcy court clearly erred in finding that the  not clearly in convincingly prove their case and they would take into account whether or not there is law of the case from prior rulings of which it can look to what was not done by the bankruptcy help panels it's simply the first time to you know we think this is not final and that judgment only should further explain and then the second time it said look we let's just make it clear we didn't rule on anything but nothing's final yet and the bankruptcy court can do whatever it wants  legal analysis challenging the bad statements on the secondary man the bankruptcy court still not bound by its earlier rulings instead appellants arguments boil down to this contention the bankruptcy appellate panel has no ability to state made that had they made this last appeal to the bankruptcy appellate panel it would remain consistent with its prior description of the scope of its mandate i'm still a law of the case you can tell by my question if we were in the second circuit the p c h case would be different right  but you know what the what it is and they said that in a situation very much like this there it is all the case where it goes up is not discussed on the first appeal except that in this case first of all i think there was more of it if i recall correctly in p c s it was more an issue of what legal elements or law should be applied as opposed to reconsideration of facts as well as we had the express direction by the paper see appellate panel here consistent with usury that there was no adoption by that court there had been no appellate ruling as to whether or not judge mahoney was right or wrong the bankruptcy court was right or wrong i do think from that angle it is distinguishable your honor and we do have controlling law here the second circuit also acts like it's a discretionary call and their key sentence is well within the discretion of the bankruptcy court and the district court conclude that there is law a case that sounds like a of an odd legal conclusion well all the case is a doctrine it's not there's no statute there's no law that sort of thing in this case  when it comes back and the direction is to please elaborate on certain factors and the sitting bankruptcy judge looks the record and sees that some things needs to be redone again there's there's nothing that has fixed any findings there's been no ruling from an appellate court on that matter there's been a determination that it's that it's not a final situation and i think something that's being lost here  actually well no it's not being last year your honor you noted it in the in the app pellets oral argument is for the first time and they see this problem is until now they didn't see that there was any error with simply the bankruptcy appellate panel remanding it back for further explanation and they for the first time for this court in their briefs to you contend that the bapi erred simply it wasn't supposed to it for some reason wasn't supposed to remain and it didn't have the authority didn't have some right to remand that back that's not appropriately before this court and so they have to start at least with the premise that it was appropriate to remand it back for further consideration and including those asserted in this matter they've been released potentially this court against this finding is not based on no bankruptcy court interpreted some sentence wrong in the in the release it's simply  well if we take the testimony from the trustee who is not a party to the to be released we he seems to indicate that he thinks maybe they didn't release certain things and they stayed astonishment as to how broad the release that they signed us so regardless we have a release of the claims and and there's and that's been a finding that clearly that the bankruptcy court was entitle to make based on that first remand the funds at issue or property the try state financial bankruptcy a state the funds are payment on a court resolved administrative claim for money the tri state financial stated it loaned tri state ethanol in two thousand and three and two thousand and four it stated that to a court which would clearly air in terminating that the appellant's did not prove their case for an express resulting or constructive trust by clear and convincing evidence and all of its did not err in determining that their talents release their claims in this case in writing in two thousand and six centrist federal credit union phrase that this court affirmed the district court's memorandum in order for it has no for the questions thank you thank you for your argument ms don't please give me a try to manage one minute the judge exceeded her mandate and reversed the entire finding of the trial court judge mahoney's decision the trial court decided this case and established the law of the case and it was never changed by the appellate court therefore it remained the law of the case and she could not change it records unless she fun made the findings of the little earth findings which she did not as per release the release only released t s f from bad actions it did not give up ownership rights because t s eed t s f continue to operate the people continued to be the owners the people that signed those releases did not give up their ownership rights the beneficial right to these funds our ownership rights and additionally not all of the omaha group signed those release