cannot be admitted and cannot be the basis of a judicial determination in this case despite the fact that the trustee had the burden of proof the trustee did not put into evidence a complete set of the statements that the various accounts held by mr black are from one hundred and eighty one on on the contrary he just put into evidence a very small proportion of the monthly statements because the only way it can be explained is that the trustee did to create a set of the records did not support his position we have claimed throughout the proceedings below that the trustee did not account had money in it and he hadn't taken it out of his position and the position that his son testified to was that mr blecher never in the entire time he had made up for count he never took over his drop so if there had been another account into which for some reason mr blecher had an arrangement with mr made off which of course is impossible to know mr blecher was one hundred and six dollars at the time the case was tried obviously someone has a hundred and six is not going to be able to remember something that occurred forty years earlier but for the entire time period from one thousand and ninety seven to two thousand and eight there is no rd party evidence of any crime which they normally would that mr blecher ever took was draw so the trust me is we lying upon a a profit withdrawal entry on certain of mr made  only evidence that the trunk put in was the actual statement but we had a very difficult time getting a complete set of the statements we never felt that we did and there's no reason why the trustee would not have put in a complete set of statements if they in fact the court is his position and it's important for the court to appreciate that with respect to a great number of clients we put withdrawals there is no such letter from black or even though there were records going back to the s laid out former employees testified that it was their practice to keep a copy of every chapter represent that meant and that that that was worked out the trustee was reliable well the no that he could not the court could not have relied upon the former employees because their testimony did not support the trustee the former employees in the files that was not done there was testimony that no customer was entitled to withdraw all unless he sent a letter requesting withdrawals and that they had those years of his receiving statement after statement after statement and course that there was a ten day clause and i came to customer agreement but i'm having a hard time getting past you know two receipts and an action initially the trustee claiming that he had two accounts and then it turned out he had eight or nine different accounts there may have been twelve with thirteen different accounts unfortunately we don't have those records the want those record but the point is nobody saves records going back forty years so we had a situation where someone was being forced to prove what happened forty years earlier there's nothing in the law that allows some gain an advantage like that particularly when the trustee has from day one insisted that the records of permeated with fraud i agree with you there is an explanation but it's there's no basis for the explanation to be that mr nathaniel kelley and if possible we would like to divide the argument where i can address you have a den jury issues and the overall proper withdrawal issue and mr kelly can address ratification and the burden under that but to prove a claim that's  record and that claim was raised post trial and mr bernstein addressed that in his opinion but i'd like to point the court to is that the trustee produced summary exhibits that were admitted into evidence as expert laid the foundation for let me turn to that very quickly because i think the linchpin of this is peel is really the notion that the trustees records are trustworthy and i think i can show you very quickly why that is not so i think we have to start with the claim that there are no rd party records here not because there were contradictory information if you cuz the cancelled checks were missing from j p morgan so that level of accuracy gave him confidence that he could rely on the debtors looking at records for purposes of determining that equity claim of cake and then cancel checks that were written to customers endorsed by customers and deposited in their bank account so i think that that level of accuracy gave us confidence in the ten year period so those records are undeniably that customers had written to below my over that twenty seven year period and other documents from working the files in the wild that number may seem low or i think we have to remember that we're dealing with a fraud that spanned decades and as the chairman even p testimony which talked about the manner in which the documents were created over the entire period and you know we looked at there were certain documents that we did find as a debtor that did talk about mr blecher specifically and one of the documents that  name was in that book and that amount and with the check him out and the date and that amount tied exactly to the statement that was sent to mr blacker would be all my employees looked at that checkout book had to fight about how i think that special we were talking about an abuse of discretion standard evidentiary ruling i think that there's no abuse of discretion here and there was an ample basis for the for judge bernstein to make the rulings that  or the length of the period that they were open and the only rational explanation for why that would be so as the bankruptcy court found and laid out in the end that mr blecher was the drawing the profit in the form of profit withdrawal that's really the only  he says only he he alone is the only person that didn't receive them but there's no evidence in the record that mr blecher is accounts were treated any differently than other account holders and in fact the evidence shows  and kelley for intervenor securities investor protection corporation as typically look forward to future liquidations the law should be clear one that a customer bears the burden of proving the amount of this has no equity and to that customer delay in objecting to a transaction metaphysics and he can't claim that he never received a withdrawal listed on an account statement from ten years prior turning st to burden to qualify for priority customer protection customer status is only the threshold determination as in a regular case under the bankruptcy code a customer bears the ultimate burden of proof as to the validity extent and amount of the claim measured as equity in the customer's account excuse me why should we reach this matter to an issue i mean doesn't it depend on a case in the circumstances like here we were just talking about how reliable the records are verifiable the records are if we're dealing with situation involving fraud  so you're correct that we don't necessarily need to reach the issue of burden in this particular matter but it's important to to make it clear for future lives that the liquidations that a is equity so that it has burned to bear and or the claimant below as has made the argument that he only needs to prove his customer is customer status and not the amount of his neck with the it's important to make it clear for future li unreasonable position because it has been trying to trying to disprove an assertion from over ten years ago when records have been lost you know all right thank you thank you thank you you know i think we we should not lose sight of the fact that the security investor protection act expressly provides that a customer's claim is the balance on their last statement so by  statute it's a statement that establishes the claim now what happened here and of course that claim included the the profits that were shown on the statement what happened here is that because the trustee represented that there was never any trading of any securities in any of the accounts that the nd circuit made the decision to eliminate all appreciation in the accounts we're not saying that there was this there was a mistake on the statements that actually went to mr black and that have been produced what we're saying is we don't believe we've ever received all the statements and unfortunately by the time mr blecher became involved in the liquidation proceeding he was over one hundred years old and didn't have the ability to recall precisely what had happened what we believe is that there were other accounts that mr blecher maintains where the profit if in fact the profits were deposited then it would be have been deposited in one of these other accounts and allow there's a dispute about the cletus of the production and if the trustee had put those documents in evidence it wouldn't be a dispute but our review was always that there were ras deficiencies in the productions and most significantly that it took four years for the trustee after his initial production to produce account records for accounts of which we had been unaware really the issue here is is that can the court rely upon evidence where the trustee himself admits that the that the evidence is not reliable these records are not reliable and they were not complete thank you very much your time is expired i think your argument and we will reserve decision