forth in my brief i'm not going to repeat all the facts here the important thing to note however is that the athletes don't really challenge this scheme in any way shape or form now i believe that there are three questions before this court two of them are questions of law which would be subject to the novo review and the rd question is for clear air the st question is did the lower courts as a matter of law regarding the trustees duty to give notice in this case our contention is that they did the nd question is do the lo courts as a matter of law by failing to consider the st test under bottom for substantive consolidation in other words whether the debtor and the consolidated entities acted as a single economic unit rd ask a question consolidation is granted at this point what would happen is the new debtors would come in and the activities of the bankruptcy court would then give notice to all creditors and hopefully at that point the at least with identify who their creditors are if there are any additional ones which we  doubt and at that point the court would give notice to all such creditors who would then be able to participate in any distribution of assets and the distribution of assets would result from substantive consolidation and all creditors would be able to participate in that distribution unlike the situation that we have now which where there is no distribution and i'll get to that in just a nd but but again the important point i think you keep in mind in this case the substance of consolidation is granted there will be a distribution if it is denied no creditors will receive  that of single economic unit was not even addressed by the lower court below although evidence was provided on that issue and the rd contention i think is that the lower courts committed clear air on the other kestrel substantive consolidation which is whether the affairs of the debtor and the apple e's here are so in tangled that such into consolidation should be granted now i think that the question of whether the trustee gave adequate notice is really central to this comply with his duty to investigate and notify the apple his creditors and also whose burden really is it to show that all creditors have been noticed or notified now here's the evidence shows that the trustee did do due diligence and yet they come in here and this was true of the trial court level and the bankruptcy appellate panel level without naming one single creditor who didn't receive notice moreover they have not made any argument as to what such a creditor if the even exist what prejudice they would suffer as a result of some sort of consolidation remember again that this is your position that there are no creditors because i mean you started by saying that either the creditors will get nothing and a half one million dollars so they are the debtors creditors and some of those creditors are also creditors of the consolidated to be consolidated entities for example there are two judgment creditors who also have judgments against the wife susan parties that you're attempting to consolidate have no other creditors besides those that are jointly or additionally creditors of the excellent question you're harmed so this is just kind of a yes or no question the the evidence that we have is that there are no such creditors because the police have never offered even one such creditor in any of their briefing so we believe that based on our due diligence we found them all and since you have a lease who certainly must know who their creditors are if able to provide the names of any credit as they didn't receive notice so as such we believe that we've carried our burden in showing that we've noticed all appropriate parties in th case now if it turns out that there are some additional credit is that they finally do identify they can be noticed one substantive consolidation is granted but at this point they have not identified anybody that we have not provided notice to be a factual question and potentially also your honor i believe it's probably a mix question of law in fact for which the noble review would be appropriate that why why where's the question of law involved and whether there are any other creditors either there are or there are not if there are what you do about giving them notice is a question of law but the existence or non existence of additional creditors seems to me essential a a factual question you either own macy's or you don't well if it is just a question of fact i would i would submit that there is no evidence of additional creditors here not and as well that that was the problem i'm sorry well it depends on who has the burden to demonstrate it because the back where we place that on you your client my saying that the trustee has not identified the creditors and so we assume that there are some out there somewhere and so we can't tell if it's fair to them because we don't know who they are so it may be a legal question as to who has the burden to demonstrate that there is a creditor out there who is being unfairly treated i would agree with that your honor and you know the here we had an expert involved in presenting our case cbus valuation company they did lexis nexis search is it's part of the record is part of the declaration of linda lee in this case so we did our due diligence we couldn't find anybody else and therefore  on that basis we would we would assume or or based on our due diligence there were no additional creditors and thus a lower court erred i believe if you want to call a question of law for the fact either one i believe it's a question of law that the burden was not specifically set forth in the baptists now that he or the trial court hears here's a separate question let's assume for the sake of this next question that we agree with you that the they didn't totally declined to reach it but what should we do about the alternative issue or the additional issue of entanglement as took as to whether a forensic accountant could pull things apart or not whether lower court the trial court failed to even do an analysis on the other no no i understand that i guess what i'm asking is whether we ignore the the failure of the back to reach these additional matters and just reach that if we agreed with you on the note this or whether we ask the baptists to go back and look at that i don't think it would be that it would most likely be the trial court i believe but if there's if there's a question of attempt to disentangle or determine what what assets existed in what had been transferred and so forth was there a timeliness question about that was was some of that information all a lot of it is older and makes it more difficult again this is a twenty years scheme to remove assets from the reach of creditors starting with the one thousand nine hundred transfer of a very valuable house that's still in the name of the office manager it also involve s putting the corporation's bank account in the name of the office manager for ten years from two thousand and three to two thousand and thirteen our expert testified that it was basically impossible or it would cost so much that it would make substantive consolidation impossible  or not worthwhile and that was his testimony before the trial court and your honor i'd like to reserve i got three minutes here and you know you may thank you the project conveyance actions that failed which result in the subs of consolidation there were three amendments a total of four complaints at the end of the day judge russell said enough is enough and that actions were dismissed with prejudice only after they were dismissed with prejudice that's when the subs and consolidation what was brought all the arguments in the subs and consolidation motion in the oral arguments and the brief focus on fraudulent transfer we have cited plenty of authority of that subset of consolidation is an extreme remedy it is not intended to substitute fraudulent conveyance cause of action which happened over here well but they're not mutually exclusive either there is no law that says that just because there's a for our national and conveyance one cannot consolidate your correct however it has at it as a very extreme result requires proper showing which lapsed over here as judge russell stated i was surprised that you f motion which under local rules in the central district requires to be supported by evidence and only after filing a motion he chose to conduct discovery is it correct that your client identified no additional then how how can this go forward with an assumption on the part of the baptists that one declaration this matter about another very simple your honor there are five or six parties involved as the target and it is over here between the besides the doubter if you look at the record of the trial court before judge russell judge russell asked did you conduct this analysis with respect to for example part time in announcers no i do not know who the creditors were i'm talking about record as opposed to argument in the brief at a minimum the trustees counsel identified bank of america that was a specific instance as a creditor that was not noticed with respect to citizenship by anyone they referred to in a deposition that was back in two thousand and twelve or two thousand and thirteen whether really weren't any inquiries about creditors as opposed to an action happening in years and years later and even with respect to susan showing in that discussion was that there were two governmental entities i know we missed notice with respect to the two sons one son is autistic so he cannot have a creditor's with respect to the other son he was doing business there was mother so he cannot have and he has to quote companies fail so he cannot have creditors because there is a guardianship for him while the parents are are the guardians for one of the sons and that's part of the discussion if you recall in the brief there is discussion about community property why the family still stays together and the father who is here in the court room comes but if it's a son every day he requires  care but i don't think that the trustee is really focusing community property in fact at the trial court level the trustee said let's forget about community property deal as to other issues what's important here your honor says last year the lake for each case came down from the supreme court which found that when you have a mixed issue for law in fat but especially a factual discussion it's clearly erroneous as opposed to bottom back to discuss the law  on that they were a single economic unit they she has to do with fraudulent conveyance and entanglement keep in mind these are two doctors and her judge russell said you have medical practitioners you have insurance payments did you conduct discovery or can you with some sort of motion to compel and the discussion of the record was put of should of what of but we did not so they had the opportunity to do so as and we focus on the evidence the evidence is moving party was lacking that's what judge russell found and bears on the clearly erroneous standard you have to find that he made a serious mistake there is no way you can fathom that his conclusions were appropriate and i don't think that's the case based on the one hundred and fourteen page transcript based on everything that happened in the underlying court there was also discussion i don't know if the court wants to discuss some of the other arguments but procedurally as the bout found if we can affirm on one basis that lack of notice the underlying record and before the trial court is there was a lack of notice and there was no due diligence it was only assumptions well what i'm not quite understanding is if we were to agree with you and say there was no notice what happens now does it can does it go back and they can now they start again now of this assumption consolidation motion is like a lawsuit because in bankruptcy you can either bring an adversary or you can bring a motion which under rule nine viewed as a contested they can't bring it again is this the end of it if we decided on notice then that's it well theoretically there could be a motion for reconsideration under fifteen either sixty i think the time may have passed but it can be brought back to or yeah i don't think it would be right but the other issue here you know he says opposing counsel says if we get something consolidation creditors will be paid if we don't they will not be paid he's focusing on his clients this is the same counsel the and to me what doesn't make sense is if you take if you consolidate them together then by definition you take assets that they would have for their debts and bring him into this estate which in my mind means they all surely have less money available to them but there's no one else that's how other creditors yes debtors the state will benefit because outside money outside assets will be brought in but then analysis that's required is how will the other creditors be affected situation is very different and bottom there were six hundred lawsuits against investors with respect to three related and these there were creditors of all of the entities so when the trustee served the notice it went out to everyone that's why wasn't even an issue over here the notice didn't go out to the creditors of the end of these it went to the targets so that police so there was no noticed all the parties basic due process seems to suggest if you're going to take something away from me i should know about it and there should be some notice no notice was provided here and i think even without getting to the substantive issues which are subject to the clearly wrong is based on lack of notice which is very important issue the underlying judgment can be affirm procedural question once there's a declaration which i yes i assume it was correctly represent of that at least one of these other non dinner parties said i do have other creditors would you had an because judge russell in this case limited you discover they simply to the declarations that were in support of their opposition to substance consolidation and in that instance those declarations only contained information about how the debtor's practice was somehow separate from his wife's practice it was limited to those issues so we could only take discovery on those issues which we did do but the issue of additional creditors was was closed at that point you've already done or did you ask for that to be specifically reopened or to motion to make more definite and certain which we used to file to figure out who are these creditors who are the additional credit right at that point no we did not but we had relied on our own due diligence here and the fact that they refused to identify any additional creditors notwithstanding the fact that they had every opportunity to do so and it had every opportunity to do so throughout the appellate process confirms the fact that our confirms our belief that there are no additional creditors they're arguing a paper tiger here your honor they're there are no additional creditors if there were why haven't they identified them before this court and what notice have we not given to creditors otherwise i mean the basic facts in the scheme to defraud remain uncontested the basic fact that creditors will receive nothing from this estate is fraudulent transfers here and under those circumstances there was a quote that i found from the bomb case which says insured the alleged harm is that fraudulent transfers of money will be recovered the estates will be equitably administered the assets equitably distributed that's exactly what we want to do here we want to make things right by paying creditors who are entitled to funds on balancing the equities here and this is an equitable decision to a certain extent making sure that creditors are paid and the recipients of fraudulent transfers yes they will be prejudiced to a certain extent but as the bottom court indicated that's not really a consideration here on the balance of equities substantive consolidation should be granted thank you cou