three bankruptcy court orders which were all answered on contested matters in the context of the underlying bankruptcy proceeding there are three independent arguments for reversal in our papers any one of which would justify this court reversing and remand it back to the district court the common thread in all three arguments is that brown media sale during the course of the bank would be bankruptcy proceedings none there is no evidence that it did no they did not consider any in any evidence in the record of the excuse that brown media has for not contesting  well the reason that they didn't contest the sell on this is in the record i it is and it's in the complaint and it's it's they they attempted to do essentially a mitigating transaction brown media did  and successfully bid on a lesser group of assets and they were the bank financing that they had for the sale that we believe they should have gotten  ultimately fell through and they were not able to close on the sale of this lesser group of assets let me put the question then also i think you add to the question or put a slightly different spin on it could be to brown media have brought to these allegations before the bankruptcy court in the process during the course of the time that before the bankruptcy judge was the consideration for the approval of the sale couldn't couldn't brown who brown media only heard about later who had who we believe will testify that the way the way the bids were calibrated were such that they they  defendants essentially used this foreclosure auction which ended up being illegal in violation of the automatic stay they use this foreclosure auction as a pretext to devalue brown media's bid they didn't have access to brown excuse didn't have they didn't brummie didn't have access to mr mitchell in the in the weeks where all of this was happening but i mean that the more important point because the record is not you know this this this was this was all at the pleading stage of they want to raise race judicata as an affirmative defense and make a factual showing that brown media knew everything at precisely the time that all of this happened they can go ahead and do that but that's something they have to do in the district court and they have to put in some facts because it race judicata except in the most extreme circumstances is something that you raise as an affirmative defense and if it can get resolved at all it gets resolved on summary judgment but the other thing is they try to do a mitigating transaction other facts are  i mean look the court can take judicial notice surely of the bankruptcy proceedings you judicial proceedings are within the same just right right there's no question that the court can read everything that was in the bankruptcy file and make some determination with respect to what  else is needed well if we did not have the salient facts with which to bring this claim at the time and we don't have to plead that we did have we didn't have the salient facts that something that gets determined  know affidavits maybe a deposition but if we did not have the salient facts at the time that is something that gets dealt with the facts concerning one of happened with in connection with the foreclosure that then ultimately precluded ferretti ability to get the financing correct correct that would be something that we would show if they raised it as an affirmative defense but you know even if we had every fact in the world and i'm not saying we did position is we didn't but even if we had every act in the world they made a business decision to try and mitigating transaction as opposed to you know fighting in the bankruptcy court that doesn't that doesn't mean that there is an  middle would case they were essentially they were trying to disturb the whole transaction they were they were suing everybody involved in the transaction to get the whole thing blown up in addition to seeking money damages here we're suing essentially one entity and the partners of that entity and what we're saying is we had a deal we had a deal pre partition had nothing to do with bankruptcy when we had the deal and that's exactly like piper there was a pre acquisition deal to essentially work on a bed and what ended up being an unsuccessful bed one of the parties to the bit in piper didn't get me you know cut off the already went with somebody else and made a deal and in that sense this is exactly like piper the only difference between this and piper is the attorney client relationship and in the context in which we're talking we would submit that that is a distinction without a difference right so you're saying your position is farm but and in no way is trying to nullify a sale and there was nothing implicitly or explicitly resolved in connection with the bankruptcy that had to be resolved with regard to your client's claims yes that's exactly our position and you know there's also i think a jurisdictional competence issues to whether the bankruptcy court could have awarded final final relief and i'd also note that belief on the clay and that you're bringing here correct correct  or and i would also note that orders in contested matters under this court's welton opinion generally they do not preclude issues which require adversary proceedings and that is essentially what we have here all of these orders were in contested matters the sales orders all had to do with the best interest of the creditors there's nothing inconsistent about our position and not fighting the sell orders at the time at the time both of the sale from the other side was is not good for you not good for the other side and that phrase is we have a deal fact of the matter is that all the facts that were in their complaint were known to the pla the time of the auction huntingdon foreclosure was already pending its impact was already known and known according to what they thought it was doing the fact that they attended a twenty hour auction with counsel for cashman was the in which we knew that based on the pleadings in this case the truth the record of the timing of the of the cases it's the one thing the foreclosure begins in june of two thousand and ten it's pending the auction takes place in july twenty first two thousand and ten so they know the huntington foreclosure is pending they know they have a quote deal that express promise they allege from k and l gates to object to the two thousand foreclosure as a violation of the automatic stay so they know going into the option that hasn't happened they know at the option according to them that various leases for the sea org properties aren't being valued appropriately are being valued irrationally that happens at the auction they are out the auction they know that the alleged confidential information is happening at the auction so nothing happened after the auction there is nothing that they learned and to say you had a deal in the united states bankruptcy court would have severely changed the outcome of this case help me  understand cause i'm your client may well have defenses to the action that they're seeking to pursue but i'm having difficulty understanding it is a race to the cotton matter doesn't arise out of a different set of facts and the operative facts before the bankruptcy court are the sale the valuation of the assets that running of the auction but this is about these claims arise out of a pre partition arrangement that they're alleging and the law firms and it doesn't seem to me the bankruptcy court either explicitly or implicitly resolves any question with regard to those matters in any of the various orders so what am i missing here is where in mr your honor if you take the bankruptcy aspect of this case out of their complaint they have nothing the entire matter comes to fruition because there is in fact a bankruptcy option if all they do is they say they have some sort of up some sort of agreement with k and l gates while he was allegedly acting as their lawyer and there's no evidence in the wrecked in record that it was acting as the plaintiff's lawyers if you take out if you see except that is true and you take out the bankruptcy aspect of this case there's no claim the breach occurred the breach of this fine do surely duty if any occurs because the bankruptcy option doesn't successfully get them the assets under the original asset purchase agreement that's what this case is about and if you reduce and i can see we're  raise that point because i can see where judge scott came from on the motion on the other issue to con a portion bankruptcy options are sacrosanct bankruptcy courts are vir sleep protective of the process they want to make sure they're fair the playing field what judge spot fines essentially is if they prove everything they not only prove the playing field wasn't level and that's already been decided they prove that the playing field was supposed to be t them and that's certainly something judge eisenberg would have been concerned with had they freeze that at the time of the option for a litigant to commit and say i had a deal with the debtors lawyer that i was going to get these assets this case would have ended very differently she would have appointed a trustee she would have disqualified this better she would have disqualified candle gates and there would have been an investigation by the united states trustees office because you can't collude in a bankruptcy auction and when you look at the tenor of their complaint it's all about we had a deal we had an agreement it was supposed to go one way and then we shift gears a little bit and they say when it didn't go exactly that way we cut a different deal and we couldn't pay for it and now cannot gates is responsible for that it doesn't hold together so judge spot looks at the situation and he says when you get down to the basics was the playing field level you can never harmonize and judge that's mine judge eisenberg conclusion specific conclusion not in one water approving their sale on august eleventh but on four separate waters because you may recall from the record they defaulted on that trans transaction and the assets were sold to p and c bank and then a small piece were sold to another buyer at the auction there's four separate orders in which he finds the auction because conducted fairly read with a reasonable opportunity for parties to bid and was  we perpetrated something where we lead them to believe something that they never disclosed to judge eisenberg race judicata does not abide silence in activity and they sat by quietly and the record shows they waited three years after the auction actually little bit more to bring this action if they suffered tens of millions of dollars worth of damage where were they and they had so many opportunities they had confirmation hearings they had they had fee approval orders for gates they had cell confirmation or they had planned confirmation hearings nothing nothing not at work and i understand that this is argument that they didn't have standing respectfully that's just wrong the stalking horse better they had more standing than anybody else in the case and as a matter of fact they still have seven hundred sixty five thousand dollars in option b deposit sitting on a count that they're arguing over the judge eisenberg granted summary judgment on so if the standard for having an interest is having a puny area interest they claim they do they claim they suffered tens of millions of dollars of damage and sat by quietly the facts are the same your honor the common nucleus of operative facts as he is the bankruptcy process in the bankruptcy option without it does there's really no case and so judge spot looks at that and says i can never get he's from i guess he's from for money can't get there from from maine he can't get there from here you  they contested this bankruptcy case this option they appeared in no less than ten hearings and they tried to cut a deal and they tried to save their financing and judge eisenberg issues in water around august they want to stand quietly saying we had these facts in our pocket we have a separate independent claim against cain delegates just not true the question about mr mitchell i don't want to get involved in too deeply but you do recall that mr brown is the president and c e o of the debtor and if mr mitchell was the debtors investment banker i'm pretty sure he had access to him as well your honor us about paper papers of an interesting case and what we miss in mr abrams explanation of it is that paper involves two real non debtors don't you when i are going to buy the assets of judge judge our faces company were non debtors this is a claim involving the debtors and where this is not two parties they got together and decided to do a joint venture to purchase assets and it failed clearly the court doesn't have jurisdiction over that but the court certainly had jurisdiction  option and i think i see my time doing what i'll close with is had plaintiffs stood up at any time and mentioned any of these facts to judge eisenberg this litigation wouldn't exist because she would have either address their issues and said you have some viability and re option property where she would have said these don't these on have any application have they gotten up and said that there was a deal bad things would have been less quarters and for the questions i will take my reserve two minutes for maybe mr rakim poor misunderstood me or maybe he's being a clever lawyer but the bottom line is when i said we had a deal they were my clients lawyer it's not that there was the deal  in was supposed to go one way or another there's no allegation of collusion here that is their word that is their straw man characterization of the complaint what the complaint alleges is that the law firm tilted tilt at the bidding in favor of their institutional bank clients and against brown media that doesn't require collusion the bank clients may not have even known it we probably didn't but a law firm preferring clients that actually have money and can continue to pay over clients that don't have money is neither particularly surprising it certainly makes for a possible story and a plausible complaint there's no allegation of collusion and when counsel says he's pretty sure that my client could mitchell there's no what he's pretty sure about doesn't matter what you're here on a complaint that was thrown out on the pleadings on a twelve p six and let them go back to district court and make whatever answer the complaint make whatever arguments an affirmative defense is they want to make and finally your support the argument you're making to us the articulate the best articulation of your claim in a sentence or two is the substantive claim you're substantive claim that got tossed by the district court one that you're saying was tossed should not have been tossed on the pl horse agreement they preferred this to they said they preferred the stalking horse agreement they didn't follow their sales procedures and they used the pretext of this illegal foreclosure action sensually to value  brown media's leases as being worth nothing and they went ahead and made a deal that favored their bank clients and that's why i was suing for breach of fiduciary duty among other things and this right before the bankruptcy junction the course of  jurisdiction and would have needed to be you know judge judge trust and that they would not even consent to bankruptcy jurisdiction and that's why we ended up and district court thank you thank