persimmon i was retained at five last evening when i was on a plane traveling from new york to minnesota and i have done my best to try to bring myself relatively up to speed i apologize in advance for lack of familiarity with the full record the matter before the court it is an appeal from the bankruptcy appellate panel's decision and within that decision the bankruptcy panel upheld the leading back of an amendment to allow a claim to be made against  of the rules of procedure in doing so the bankruptcy court made an error of law as did the bankruptcy judge the error of law is that under fifteen  the amendment back can only occur if it is allowed in the statute which really sets the statute of limitations that's five forty six eleven u s c five forty six eighty does not within the statute allow for a relating back therefore we believe that there was an error of law made on allowing the relating back of the amendment this is i see that you're lot of things in the last fifteen hours middle is mostly about contemporaneous exchange it was about contemporaneous exchange it was about whether or not there was new value and so  address those issues with regard to the contemporary bankruptcy appellate panel use the webster's dictionary definition of contemporaneous that's an interesting way to address it but it doesn't comply with the law it was it was a substantially contemporaneous exchange and it was done outside of the ninety day period the payment to complete the exchange was made within the ninety days however in looking at what the intent of the parties were the bankruptcy appellate i'm sorry the bankruptcy court in the bankruptcy appellate panel looked only at the settlement agreement and said well since you called for basically three steps we're going to say it's not a contemporaneous event but that is with all due respect really is thinking because first of all it would be absurd to think that at the time the settlement agreement is reached which is outside the ninety days that the general are would have written a check before gen mark gets either the boat and or the mean when yes that is my argument that this that the steps relate back to the agreement and the agreement is outside the ninety day period that what the bankruptcy court and the they looked at this and said well the settlement agreement provide that yet shall not be paid any sooner then fifteen days after the title clearances get back to in looking i couldn't find a case and i didn't have a whole lot of time but i spent a fair amount of it looking for a case that might be kind of on all three set of all fours i couldn't find anything that really relates to this kind of a situation where are get the boat in footnote brief for the trustee they indicate the gent more that the boat was resold for one hundred fifteen thousand dollars so this is not a situation where there is a depletion of the resources of the debtor the debtor that the boat the boat was the new value as a result of getting the new value the debtor did not diminish as to whether there was any value that was going as new value but that was limited by the amendment to the code  if you buy a car you may spend fifty thousand dollars for it and when you drive out of the driveway and make your first left turn it very well could have lost twenty five to thirty percent of its value so what was not addressed and what was not looked at is that there was new value that was given i think it remains open as to what that was which is part of why we're asking what we now decide the case based on new contemporaneous exchange and then says that it also must be in fact substantially contemporaneous does that mean there's a difference between what's required in the intent and what's required in the actual intended to be contemporaneous because of the lag time for payment because they went to the dictionary definition it has to be at the same time what do you think it means issues to look at the first is what was the intent and then the second was intended to be contemporaneous because it was intended to have a built in lag time for payment what's wrong with that this was intended to be all part of one transaction and so it's all part of one transaction you say it's a contemporaneous exchange even if the even if it's not all done on one day correct yeah so that's your position and and you say it is a fact issue in the baffin course you can't really find facts it should find fact the district i mean the bankruptcy court did you look at the bankruptcy court's order on this who can get that  there's not much of a finding as i read it just as the payment required no sooner than fifteen days after the delivery of clear title was not a contemporaneous exchange no finding the only way to do that is to pay part of the money that liens are paid off then you get the waiver and you pay the balance that's not just dog part of one transaction it's one contemporaneous transaction separated i th at all to some extent actually the trustee doesn't separate them and didn't separate them in the bankruptcy court it was after it was distinguished in the back and we don't think that that distinguishment is actually relevant to this actual thought and and if this court agrees as well that's fine but in this case the settlement agreement was signed by john meagher tennessee john meagher holdings paid the sixty five thousand dollar transfer at issue so they're two different entities so the bat determined that you could not determine john more holdings intent from the settlement agreement because they weren't an actual party  agreement doesn't seem to say what john mark holdings the ten intent was and that's the only evidence the bad had because that's the only evidence that the appellant provided to the bankruptcy court of any intent of dunmore holdings so they're asking you know the debtor in this case their affiliates but to be honest now they are separate yes but they are not a substantially or procedurally consolidated the appellant incorrectly listed them i would say they are handled as twenty three different separate bankruptcy states so what said regardless of whether you know even assuming it shows general holdings intent the intention is that they specifically carved out and said that the transfer will not be made until fifteen days after they receive contract the settlement agreement does to a parent and so my understanding is if the parent is a part of the contract that is the underlying dot so they have a but the payment underneath that that was not paid until march twenty third that's the antecedent it's similar to getting product from a company and you get the product delivered and the end of that is that you all the invoice why can't  be contemporaneous or substantially contemporaneous if the payment is separated by a couple weeks fifteen days because there's an intent and in this the settlement agreement specifically says there is no intent they couldn't cording to the settlement agreement pay at the next day right but no sooner than fifteen days so then their intent was it's not going to be contemporaneous there has to be this time period this fifteen days between between receiving those documents and a payment what do you think contemporaneous means the same day contemporaneous you know i would say contemporaneous as well contemporaneous yes at the same time substantially exchange a security interest is given it's just not perfected until later and this situation nothing was given the money wasn't given until had to be fifteen days later so there's there's but i think that that is it was going to be pledged at the time and well and my understanding is you have the wrong case your honor my understanding is there was always the understanding that in the island they would they would be paying that into the days so that's might the distinguishment in there said you have to do it within seven days and here they said you can't do it within fifteen days and that's how i would distinguish that case as a reason for you know the fifteenth is we don't know unfortunately when you're a bankruptcy trustee and getting access to the person who actually wrote the agreement it's difficult and it wasn't anything that was discovered by calendar all that they went into  a number of issues that i wanted to touch on first of all the claim that there's no preference here in the fact that the bat didn't address that it was fifteen days after the lien waiver so the greenman says we received the lien waiver fifteen days after no sooner than fifteen days after we received the lien waiver the will send it out so if there wasn't leg time waiting in those fifteen time fifteen days for the lean waiver it's we get the lien waiver we're waiting fifteen days and then we'll send it out there's no agreement we're going to send it out the day we receive the lien waiver in fact the agreement was they couldn't send it out the day they received the thing waiver there was some discussion by opposing counsel about the relation back in the amended complaint and that was not preserved on appeal and so i would argue that that his burden to bring evidence before the bankruptcy court to show those defense and he did not meet that burden what would be would that be a factual finding by the bankruptcy court we do believe that the intent issue is a factual finding that's discussed in the gateway pacific case one fifty three federal third at nine eighteen specifically states that and intend ruling  under this specific statute it is a ruling of fact and the underlying factual ruling was in this case the underlying factual ruling was that there was a lack of intent for exchange of contemporary for i have this order order granting and denying summary judgment which is an appendix forty eight page fifty one and that says the payment required no sooner factual question that has to be resolved it would go back correct but the the issue isn't what the judge in this case basically said is this is the only evidence that calendar l a point was a settlement agreement and he looked at the settlement agreement and determined because it said the fifteen days that's the factual finding there is no argument that the facts are undisputed because the settlement agreement is what the settlement agreement is he determined then that there's this intent and that's what the intent in the settlement agreement was that it be no sooner than fifteen days and he based on that found under the law that it was not and that  not intend for the exchange to be contemporaneous this in this situation we would argue that there was a new value that was the position the trustee took so the first payment was a main pursuant to the step by step process in the settlement agreement the first payment was made then new value of the liens were transferred and we would argue that that was new value for the first payment but then the sixty five thousand dollars was paid and there was no new value after that and so you just heard her vote to say we reward forty thousand of them then the boat value of the boat was greater sixty five well i should say the return of the lien cards and the information so the return of the boat court hearing this was didn't come up because in bankruptcy the appellant had actually admitted that this was a preference that was determined to believe it is in the order that it was not contested it was admitted that it was a preference it was never in any of the briefs but the way that the trustee handle is number one the trustee looks ninety days back and saw this preference sued this lawsuit out later then found out it was pursuant to the settlement agreement looked at that other payment the original payment to the bank of one hundred forty five thousand dollars looked at that and that was outside the preference period the ninety day preference period cracked it's outside the ninety day preference period so number one we didn't feel like we could go after it number two the trustee looked at it and said even if it was within the ninety day preference period they gave the lien the lien waivers and the certificate of title assigning the boat back to the company so we didn't put a value dollar amount on that but we determined well that was new value for that one hundred forty thousand dollars transfer because it came after new value has to come after you can't get new value before you get the transfer so then they gave the certificate title certificates back to the company and then after that occurred fifteen days later no sooner than fifteen days later after that occurred then the sixty five thousand dollars payment was made  was given it can't you can't give new value before you make a transfer because it wouldn't be new value for that transfer well in this case and the settlement agreement i would say that's not the situation i clearly indicates that the the payment cannot be made until fifteen days after what they're alleging is the new value so how can you say it's new value or even at the same time if it can not be exchanged fifteen days until fifteen days later so this was what can what can't be exchanged until fifteen days later the surrender of the lien on the boat or the lane was surrendered fifteen days earlier and they said ok surrender that and we're going to wait fifteen days we're not going to give you your money for fifteen days so when they say deal that was put forward i want to this vote was actually sold for about three hundred some three hundred thousand wasn't it in and after the arbitration and it was taken back for well less than what they paid for does that make any difference in this so the question here that we're dealing with i don't believe in the soul for well over three hundred thousand i thought it was when it was purchased you knew it was purchased for more than two hundred eight thousand dollars it was involved here i believe as i read the records so you got  the defendant here having some money paid to do with this book company i don't i don't think it was i was more than the two hundred thousand that's bouncing around in this transaction and i understand how they paid him for the full amount of what he purchased about for care of ignored well i wouldn't agree that it's in the in the doctors tell the doctors about manufacturer another company sold the boat and could have taken profit as well within this family of it's our position that it dead right i see amount of time if i have no further questions thank you thank you thank you my recollection is i am reading through materials that the original purchase price of the boat was two hundred eighty five thousand dollars but if the court would allow me to supplement yes it's in  right thank you one other issue that i wanted to address was that under five forty seven b the new party either knew or should have known that the adversary against had taken steps to get themselves out that conclusion is without any basis of fact in the record anywhere mr could not have known or even had reason to know under five forty seven b that the ever siri proceeding could be coming to him so he's relying  basically i mean he has a statute of limitation he has this statute of limitation had run and then he finds out that the trustee is moving to amend well that all occurs after the amendment is filed and therefore we believe that that is another reason why this matter should be remained back appellant did not contest whether it was a preference or not which is different then agreeing that it was a preference that's my understanding of the record and therefore with all due respect and i would appreciate the time you gave me we received would request that this be reversed sent back down for evidentiary determinations and other