please a court michel for the italians this is an appeal from a summary judgment order on the trustees preference clans and in this appeal we brace three issues and as calm alternative relief we have another legal argument that the one which is what gives the district court the authority to review the non chord matter once the bankruptcy court enters its findings and that the appeal then have to go to the district court if you want to answer and in the circumstances this case a little bit strange because i thought i what i'm getting at counsel that you're not addressing it here we are in the back you're suggesting that we should review the bankruptcy court's decision which you dollars c has the ability to review that decision and make that determination so why are you here your honor we're here because we have the opportunity jurisdiction if it's possible to transfer this case to the district court you know what we do is dismissed the appeal if your argument is correct because the we don't have jurisdiction because you picked the wrong forum for us to decide th preparing your argument filing a brief in attending a hearing that you should have no you had no jurisdiction we have no jurisdiction over the stream a nation because you raise an issue that you suggest we haven't got the ability to review honor i appreciate the question and the comments that you made and because these were not fleshed out in the answering gree i would like the opportunity if the court is considering sanctions dismiss nor in your amended motion to the local rule requires on the st response of pleading moats in or paper that's while been an abbott jury proceeding under seven thousand dollars well be that you raised the issue so you didn't you didn't seek to withdraw the reference to see if the district court would decide this question under because you raise that as a stern so ingestion in your motion for summary judgment that's the st time you've raised it then you raise it with us and you don't  district court instead you elect to come to the ballot which is your choice because the statute provides you with the ability to make that decision upon your fun you know so the appeal so why should it in this instance find that you vote that you've  forfeited your right to raise certain quotes and by failing to raise the below a timely number to not katie and making the election to go to the district court and asking us to resolve this question judge diane talks about as well as and actually just didn't mention both of them if this is a waiver this is really our threshold issue in the case and so if we don't want on the threshold issue then we just go to the next argument and that's why we've presented three different arms and so as the court's looking at this is waiver i can appreciate that and i can accept that and that's why that was in our only argument case the issue we have with this is that st it is an issue that's actually before the nevada supreme court right now on whether the trustee have the ability to certification to the supreme court because ultimately the nevada supreme court has the ability to address the jurisdiction of its own courts but let me let me ask you to clarify  so is the is the issue the question of whether the trustee could step into the boat a gauge not to have the bankruptcy estate that you're asking up to the state you're asking the state supreme court to determine that the trustee couldn't take over the litigation and become the plaintiff in that and and basically the issue of your honor is that the trustee cannot come into the case on behalf of the creditors not on behalf of the state and so that's that's the distinction that we're currently litigating about when you say the creditors you mean the herx to party it couldn't substitute in on behalf of the state instead of just representing them individually c correct your honor but but it's true isn't it that in this instance they trust even filed a motion to substitute in your your client's didn't oppose the most and in fact if you laid that the trustee could cases that standing is a matter of subject matter is diction and cannot be waived and so even though there was a stipulation as the court points out subject matters duration cannot be way and so that's part of our argument there there never was a finding a specific finding that the trustee appeared on behalf of the state but there are there are some findings with  i think it's funny number twenty six on page ten of the record and the bankruptcy judge basically takes the state courts findings of fact and says hey i'm just going to adopt these as my own and and we provided some citations in the reply brief where we've quoted the record where he says i could talk about all these other things but i'm just going to adopt this wholesale and so the way we've characterize about at the bankruptcy court level was edward versus gandow or edwards basically involves a situation plaintiff files against defendant in case one appeals that loses case one plaintiff loses case one appeals that and then files case to so plaintive is the same in both cases and the supreme court says well you know we're going to apply are normal issue preclusion here you've already litigated this has the same in both cases it's the trustee wins in front of the state district court and then the bankruptcy court says to the bankruptcy court now i want the bankruptcy court to just adopt everything as truth without having to end the pain of lea demonstrate its position to bankruptcy judge here their ability to appeal to a court which can give them appropriate relief as expired in this court not grant appropriate relief all it can do is  affirm what happened below what happened below but this court actually engine does not have the jurisdiction to do either therefore they have forfeited their right and th indicated in response to my very convoluted big complicated question it would seem to me you would suggest think we don't want to lose jurisdiction in the battle we want you to review the decision to go problem there so it have a claim to the trustee the trustee as your owner indicated was stipulated into the case he then file an amended complaint seeking different relief he did not or group of creditors who are going to be the sole beneficiaries of that recovery here the creditors of the estate will be the beneficiaries of these david this is currently before the nevada state court i think sort of begs the issue of this and that is the court have the right and i was yes is not to determine the powers of a bankruptcy trustee that is reserved for the bankruptcy courts and the bankruptcy system in fact i would think their argument grants case which is the decision that state courts cannot determine relief from state matters certainly not in a binding way where the bankruptcy court has to abide by the determination of the state or whether the trustee has the ability to write a new the bankruptcy code to pursue those claims is a matter reserved for the jurisdiction of this court they talk about the use of issue clues in your honour's have mentioned the difference between it being parties who are probably with each other i would also point out that there is the th circuit law that we cited  siding so the new circuits declaration of what nevada law is is i submit binding upon this court because the th circuit certainly has not reversed its decision in the eyes or even question so i'm sorry in party it is they've case that says once we decide it issue is decided and in private they decided yes offensive issue because it is permitted under state law with respect to whether judge the one hand you think it's not applicable the other hand you think that the record would demonstrate that if that was necessary he complied and one thing i would add it comes to mind is i believe they have forfeited that issue because it was not raised in the bankruptcy court threshold issue of jurisdiction your honor was questioning whether we would waive the initiative threshold issue on stern and so forth absolutely we will because we'd rather have a court  mentioned even if one didn't apply the district or the bankruptcy court still be required to fall back to the earlier version which would go back to the five star case  and then i think everything else we've kind of addressed but in the well let me give you the about the last thing that he suggested which was the way you think you raised the issue with regard to the i raise it is because it showed up on page ten of the record where it states preclusion principles but has no further analysis there was no analysis at the time of the hearing and so that's the reason it raised at this point