wells fargo bank in a trustee for the gas for us a creditor trust there are several issues up on appeal before your honor's today with respect to wells fargo's contemporaneous exchange for new value defense to the trustees preference if i may i like to start with the question of whether there was any value in wells fargo's lien that was released as part of the three provisions sale to travel etc so what i'd like to start with is how the the bankruptcy court basically set out its analysis of what should happen and by the way i think the court did set forth what the analysis should be what that analysis should be as two steps to determine if there was any value and it's only the st is determine the value of the underlying collateral the nd question then is to look at furniture fixtures and equipment people who call the f f any in the opinion was worth roughly one million four hundred thousand dollars no one or the trustee is not challenging that as part of this appeal i want to make that clear just because wells fargo spent some time on its  brief going through legitimising so that's not something the trustee is challenging where it gets interesting from the trustees perspective is looking at the other liens to determine if there was value in wells fargo slee there was any equity  not paid in full as part of this transaction meaning despite the fact that it was the senior secured creditor it did not get paid in full whereas wells fargo would junior to secure creditor did receive some money so despite the  collateral has been has been sold so at this point it has an unsecured but the lodge would have taken it at that time if this would have gone through with at that how can you argue that both ways either they have lien that they weren't able to reduce or they don't have a lien and i think that you know whether this is an avoidance action or not those proceeds arose from the sale of collateral that was arguably  under your position i think it was their collateral that's correct your honor by the situation in the brothels unlike was faced with was that the sale would not go through wells fargo did not receive money and the reason is because wells fargo refused to release its lien as part of the sale unless it received money notwithstanding the fact it's we value so so is there anything wrong with that i mean what you say that is if that's wells fargo did something within ninety days right or wrong thing so the issue they have is that they received money in essence as an unsecured creditors because their lien add no value so that's why it becomes a problem i'm not saying that what wells fargo did at that time at the very end of the bankruptcy case that so the bankruptcy case occurred more than two months after the sale took place at the time of the sale the i r s had a u c c on file for a secured claim of one million five dollars the proceeds it received from the sale was only six hundred thousand dollars from the sale of im and tori and alina release that was set forth in its letter specifically said it was related to the inventory so at the time of the sale which is what we should be looking at for purposes of the contemporaneous exchange for a new value defense at that time the i r s still had a lien now what happened in the bankruptcy afterwards is what the bankruptcy court relied on to find that there was to step back and talk a little bit about what this would mean if if this if this were the law and if a secure creditor whose lien had no value or you know if if there were secure creditors above it were not paid in full and yet a junior lien holder would make this happen so basically what that would do is encourage junior lien holders to be very aggressive and push to get paid even though their lien has no value so we it would almost take the priority system of secured creditors and turn it on it turn it on its head because there really be no reprieve repercussion for junior lienholder in this sort of situation but when you have this sort of situation you have a per rule i think that the i think that the for sea rule should be if a senior secured creditor is not paid in full through the sale of its collateral the junior liens would therefore have no value because if the correspondence back and forth makes this clear is because wells fargo realized it had the leverage to require a payment in order to release its lien so if you have a preposition sale and the senior creditor is not going to be paid in full under the bankruptcy court's opinion it has the junior lienholder has the ability to extract value out of its lien notwithstanding the fact it doesn't have any money with any equity but didn't wells fargo also ha skin in this game and had to release some claims because of the conversion of ambon torrie through the sale that occurred there that's correct so turning to that your honor that deals with the whole of what's called the  fargo gave a release to philip sixty six dollars such that it would not pursue wells fargo for the recovery of that him so that was a release between wells horrible and philip sixty six dollars now where the bankruptcy court said that hurt and just for the courts you know what i had reserved five minutes on rebuttal i'm almost at that point the last the last issue i would make that with respect to the sixty six dollars is what the court found the new value was that additional time to pay and it said that why it was new value is because that restructuring of the payment schedule termed it out for more than two years the problem is that did not occur this terminal for two more years promissory note was not put into place until two months later so at the time of this transaction there was not this two year term and the bankruptcy court said that this was basically this promissory note came into existence two months later but the deal was in place at the time of the sale i'm wills fargo received money i don't think the evidence supports that the only evidence with respect to when that agreement came into place or what was in place at the time of the of t a sale was mr tiddles the c e o of gas force testimony but that agreement for a two year restructuring was not in place at that time there is was a testimony in the record from the former c f o of yes mark marcus morgan who said that on the sale date the top sixty six released resulted in new credit extended on that benefit of everybody if it had to it if all the liens had to be released that's what the buyer required as you would think they were paying twenty seven million six hundred thousand dollars for all of the assets and they didn't want to take it subject to the means of  life did what it did but i think it did what it did because they knew that there had to be money left for the other secured creditors the un be an equity bank an enterprise bank in great southern bank as well as wells fargo to get something the closing that went right to the of the closing date and so on but all of this is because as you'd expect the buyer insisted that we see this property free and clear of any existing think the two ways to do that right there one way to do that and that is there are two ways i may go she ation which is what happened or by filing bankruptcy and selling it free and clear lanes and valuing it that's all they asked for that's all they got and they never said anything else there was nothing in the record to say they were there there was any remaining only so the tax lien was discharged and then we know that they filed a pro claim as of july two thousand and fifteen that they amended a couple several times but they get they got to realize that they had no tax lien at all sixty days later and then in addition there's nothing in the record to reflect that anything happened between april th and july two in the form of either a demand by the i r s trustee would have all these records if there had been one but were position is the service have a lien it was paid in satisfaction nothing special about that transaction right payment had the debtor been liquidated on that date ninety days prior to filing but didn't wouldn't wells fargo i wonder why wells fargo conceded that point as creditors are still equity available for wells fargo so i was curious how why wells fargo conceded that point because i don't i don't think we could've brought over that say and plus everything the b five there is an agreement that because in a bankruptcy some like might not have taken that maybe they wouldn't i don't know so is your argument the timing of when the bankruptcy was either at the time of sale or later i mean i guess i'm not million and three paid wells fargo a closing that one hundred thousand was paid the day before so explain to us how that is tied into a contemporaneous exchange well because it was it was all i just got a couple minutes left on the philip sixty six release i would like to go back that we dress that briefly the other component of judge dow is opinion about that was what was the pal you have a new credit philip sixty seconds make in to the debtor post petition they cut off the debtors fuel supplies post haitian he changed entirely the arrangement so it would be they would supply gasoline on consignment they would receive all of the god as a result of the sixty six dollars release they got this new credit they got new fuel supplies all these fuel supplies and me and they sold the gasoline for the next two months and the evidence from the fall of sixty six consignment agreement is the right to receive all of those revenues worth at least two hundred and seventy six thousand dollars a month because that's what phillips sixty six dollars was wont to pay to receive it sixty dollars days later so that's another five hundred and fifty two thousand was an advance payment on a deal already struck and the bankruptcy court st several exhibits there were e mails to the site to this problem is the evidence does not support that what those e mails show is that wells fargo's counsel said unequivocally the payment of this one hundred thousand dollars is necessary for us to continue talking we're not even going to talk about a global deal with respect to the sale and tell you pay this one hundred thousand dollars wells fargo's brief they talk about the timing of two emails and they refer to an e mail from mr tittle the c e o of gas bar where he says we have a deal in response to a several terms one of which being a one hundred thousand dollars payment the problem is wells fargo counsel a response later that evening proximately nine hours later and says we don't have a deal we have all these conditions one of which being you pay us one hundred thousand dollars as a precondition to us even continuing to talk  think the record is clear that the one hundred thousand dollars was not an advance payment on a deal already struck was a separate payment that had to be made for wills forgot to continue even talking about mentally ill expectancy but that there are time that was purchased it was only one day wasn't it it was only one day because they close the next day no no they did not close and the next day so they could talk with so they had this correspondence april twenty eight hundred thousand dollars was paid on april th they continued to talk and then they had the sale the next day but the problem is that two days it was two days so the problem is there was new that no new value given with respect to this one hundred thousand dollars all of these things that the bankruptcy mr morgan's testimony does he state that at that point in time philip sixty six was going to give a two year promissory note for gas more to be paid that that testimony does not exist the only testimony that exists with respect year restructuring did not come into place and that that did not exist and so i think that that's a point that's that is i'm working on i also want to touch on the value that was given to the philip sixty six transaction because obviously there are two components to finding that being a contemporaneous exchange for a new value one of which being there was new value that was given to the debt or the nd component is how do you place a number on that how do you