three issues st the appeal is not moot nd the appellant has appellate standing and three the bankruptcy court did abuse its discretion in a approving the sale order unless the court prefers otherwise i will address the issues in in that order so st the pelleas have filed a motion to dismiss the appeal claiming that the appeal is moot this is based on their allegation that the sale has closed and while it is true that in the event a sell is completed and the to a purchaser in good faith that can provide hadn't really been consummated because all the money in escrow who's had a thirty nine million dollars mortgage claim and it is true that the bankruptcy court disallowed that claim in the proceedings below however that is a separate order which is currently on appeal in a separate proceeding  not yet been resolved that will be resolved in due course and as we set forth in our brief as recognized by the th circuit bankruptcy appellate panel in the sears case while that appeal is pending our client has appell standing to protect those rights which while disallowed by the bankruptcy court could be reinstated if the appeal is successful in this court and therefore we would have appellate standing to proceed with this appeal in order to protect that interest except that in the th circuit case it seems like it was just dicta and it doesn't look like there's any kind of analysis whatsoever supporting it so there i do acknowledge it was a brief discussion in that case it was only dealt with in a paragraph i do think that the facts are analogous to here because there you had two appeals going on you had the appeal of the underlying disallowance and then you had separate appeals in assuming it's analogous but maybe you could explain why we should be persuaded by that you would use to support that conclusion so a couple of reasons i think your honor it the conclusion wall discussed briefly does eminently make sense and so i think the conclusion that that court reached is very sensible because what it does is it allows a party on appeal to protect rights which haven't been finally extinguished so even though the bankruptcy court found for example in this case that our claim for the thirty nine million dollars was disallowed that that's not final this court may choose to reverse maybe it will maybe it won't that's a separate proceeding and we should not be precluded from protecting that interest here while it is still possible so if the test is are we a potentially aggrieved party which is the standard on standing are we a potential party agreed to do we have an actual peculiar interest to protect i think that the th circuit be a piece conclusion is absolutely consistent with the fact that we do which is sensible because  if for example we were found not to have standing on this appeal we therefore lose the right to challenge the fact that we contend that what the bankruptcy court did failed to maximize the value for the estate and then get that claim back it would be too late for us to vindicate that pick your interest which exists because under the sale approved by this court that claim if it were reinstated would not be paid in full and under either if our bid were to have gone through or an auction that our client argued for were to have occurred and led to a better bid that would have worked to the beach or any interest of our clients so while i do acknowledge that the discussion in that th circuit b p case was brief i think that you should be persuaded because the conclusion was eminently sensible and i would also note that no contrary authority on this admittedly apparently rare question has been identified by the opposing counsel and we didn't find any ourselves so it's the only case that speaks directly to this issue i think it's a sensible the court to adopt it second point your honor an independent basis of standing is the fact that while it is true that merely a disgruntled or disappointed but bitter does not have standing to appeal there is a well recognized exceptions that when you challenge the fundamental fairness here if you really look at our allegations as to how the sale process why we're challenging the sale process here it's that the sale process was structured in a way specifically to exclude our client from that process and we will talk about in issue three whether that was permissible or not permissible but i would suggest that the nature of that dispute is sufficient to fall within the standing exception the rd issue and i just want to  be very transparent with the court in our brief we raised a rd basis for standing which is the mechanic's lien claim that we purchased at the time that the briefs were filed we did not know what the nature of the objection that would be brought by the debtors to that claim and because at that point it was possible that they would bring a claim to you know convert or claim from a secured unsecured claim that could have given us a basis of standing my understanding is they have since father's objections and the objections they brought would leave us to an all or nothing  upfront abuse of discretion standard is a high high burden to be in a high hill to climb i think the way to look at this which was explained by the nd circuit way back in the lionel case is does the debt or have a legitimate business reason for doing what he did and was there a basis for the bankruptcy court to conclude that the debtor did what he did for legitimate business reasons  came came with some agreement just closed bryan i don't remember how much cash five hundred whatever but you didn't come up with the cash for whatever reason you head you may have had a good reason you may whatever it didn't get consummated right i think your honor is correct  nature of inability to form our extended writing staff contains as you claim you didn't have to perform given all of the background of this and i'm having trouble why the bankruptcy court now that's what it seemed to me or gets the heart of the matter i'd like to explain why we think of discretion yes and that is this we have to ask the question was there a legitimate business reason your honor i think states many of the business reasons that were poured forth for the debtor i think we can break them down into three buckets i like to address each the st is the one your honor talks about surety of payment i do recognize that it could be a legitimate concern to say i would rather have thirty nine million dollars for sure than maybe forty million dollars the bankruptcy court to its credit did an excellent job at the hearing of sniffing out that issue and so as a result if you look at the bid which was put forth by my client at that hearing it was a precondition which we agreed to at the bankruptcy courts assistance that one hundred percent of the purchase price would be paid upfront into escrow as a one hundred percent nonrefundable deposit but it hadn't been paid out at that point right i mean it hadn't been paid and your client had a history of having not paid previously your honor it had not been paid because the bid procedures that the bankruptcy court put in place had originally been vacated so at the time of that hearing there was no mechanism or this that at which the bid was presented happened on i believe it was march th the alternate bid required best efforts to be used for sales order to be entered by march th it absolutely my client indicated at that hearing they would pay the money into escrow immediately that would have cost the debtor nothing it would not have imperil the debtor's alternate deal to say the money comes into escrow today or on monday and you still could have at that march th deadline so it would not in order to give michael wasn't going to be the full payment wasn't i mean us it was your honor one hundred percent under the terms of this deal as required by the bankruptcy judge when he had the colloquy with my client's counsel at the sale hearing one hundred percent of the purchase price including an additional five million dollars to protect against the claim the additional possibility of additional claims by the city of palm beach would have been paid into escrow in there would have been one hundred percent search out weren't willing to take over our and agreed to the palm beach t but on this issue of was there surety of payment that was one hundred percent guaranteed and if we hadn't paid the money into escrow they would have lost nothing they still could have gone on the path that they did there was time to do that but i think you're mechanic's lien claim they hold is not a basis for standing ok they've extended reduced it to one they say that they were excluded from the sale process and yet as your honor i think teased out and as a as a council conceded  they were included in the sale process of the debt or actually negotiated a sale with them and they didn't show up with the cash it was about five million dollars yes your honor i'd like to address though the what i think is the correct legal standard that this court adopt in the hair ford case and that is the standard that in order to be a person agree for bankruptcy appellate purposes the the order that the bankruptcy court entered must directly adversely and peculiarly affect their interest and it plainly doesn't the outcome of this deal they can't claim as a disappointed bitter that they have a right to a poet standing that's not legitimate they claim that they don't like the sale procedures because if there were different sale procedure that might have benefited them in some way i said they were fundamentally unfair given all the facts and circumstances but of course it wasn't fundamentally unfair given all the facts and circumstances and if i could run through exactly what happened in this case the debtor began selling the property right after it filed for bankruptcy in august it hired cushman wakefield it basically put out information that was available to approximately twenty nine thousand potential bidders there were four thousand eight hundred views three hundred and thirty five parties executed confidentiality agreements there were forty tours that reduced to two qualified bidders who were able to be approved by the town to develop this hotel which had sat for years as an eyesore under the ownership of  straw that's one of the reasons why that the the k k p b is not approved by the town because it's also owned by mr strabane mr straw had let the hotel languish for years without any improvements being made for which there was over four million dollars in fines that were imposed on the property so there were two bidders they had a stocking horse bid with our yes for thirty two million dollars that was negotiated and then there was only one other better who was potentially going to bid and that was l r and eventually they came in for thirty nine million six  bid that they proposed as the bankruptcy court determined this was a certain bid this was a good better who was qualified by the town they offered to pay it mr straub had a history of not going through with things and one thing i think that's important to underscore for actually on this record your honour's and that is k k p b did not actually propose to bid on this property they're standing here before the court saying we would have proposed a bid that's not what happened below their proposal was that our proposal is that somebody else will bid on this property that will have an auction and that other entity was this entity called kids to l l c well where are they there not here before the court challenging that this was somehow unfair to them they did not proposed again they did not propose to bid on this property at all they said we want somebody else to bid on it it was a last minute after the fact after the deadline there was a time when they wanted to bid and they wanted to have credit for that correct your honor and that was disallowed by the bankruptcy court but the reason why is because they participated in a fraudulent scheme this underscores the whole thing mr own the debtor the debtor was being run by mr mathews mr matthews was perpetrating a massive e b five visa fraud against foreign investors he was saying invest in this property i'll give you an ab five visa only he just took the money and spent it he defrauded all these creditors they have tens of millions of dollars of claims against the debtor mr was the former equity on the door of the debtor he decided well i need to sell my equity interest so i'm going to sell it to an outfit owned by mr matthews and his wife only mr matthews and his wife in this entity palm house is not going to pay for it the debtor is going to pay for it by giving mr straub six million dollars and the debtor is going to pay for it by giving mr strub a mortgage lien on the property which had the effect of elevating his worthless equity interest into a secured claim to beat out the fraud victims the bankruptcy court took a look at this and said this is a fraudulent transfer scheme that's why their claim was estimated at zero and it properly was estimated at zero so they have no claim properly so this was sort of a good other appeal correct but that underscores what's happening in this case they are trying they're trying to use this process to perpetuate a fraudulent transfer scheme so mr straw can suck the value of this of the hotel and not allow for the e b five victims to be paid they have been waiting for years to be paid l r has put the cash in escrow judge hall i'd like to address a point you also made on standing it's not true that all of the cash has been parked with the chicago title the escrow agent over a one million dollars of the proceeds have actually been spent to pay cushman and wakefield the party who marketed the property to pay taxes to the town to pay our breakup fee to pay the title insurance policy only some of the proceeds are stay as far as as far as mutinous goes i mean it seems like it's got the same practical effect though your honor and here's why under the statute three hundred and sixty three says you can't do a sales so what we have to talk about this is i think they're leading the court down a garden path what constitutes a sale funds are escrowed after sale all the time it doesn't mean that they're not really a sale or it's not a complete zone let me tell you why because if we don't get this whole thing resolved by may right now so i except for the money that you've just spoken of but even so it seems like that affectively serves the same purpose that a stay would serve and it's not doesn't seem like it's a final sale if it automatically dissolves if we don't resolve this whole thing by may th of next year does not about a clean result you're out or it could it could be undone that's even that's true but any sale can be undone after it's actually been done the question is a not models don't have a one year one year provision written in that authorizes it to occur i mean yes a buyer could try to undo a sale afterwards but there's no guarantee that a buyer could here there is a guarantee that the buyer could what they say they would have the option to if the conditions are met that's true and there's a guarantee that if they opted to they could but the point i want to make is that whether a sale has occurred or not is a question of state law under florida law not and under florida law the concern your honor is i understand is irrelevant to the legal analysis that's the point there's a there's a florida statute on point we cited in our brief section six hundred and eighty nine dollars when you have record ation of title which happened here in transfer of possession which happened here you have a sale that meets the statutory required terry of section three hundred and sixty three and so we have one i said that as a matter of law the consideration that your honor is is making actually doesn't play under the statute but understand and i want to get to the merits why there was no i just ask you a quick question before us through that are you seeking to expedite the other appeal so that maybe this cold thing can be resolved in the sale can be saved it has been expedited or out of the briefing schedule and put in place it will be dealt with in short order consideration you're saying that's been done in this court their brief is due next month our brief is due in january i believe that doesn't expedite the case i see your honor notice of appeal was just fall right the district court just certified the question they just filed a petition for permission to think expedition of and we respectfully and phatak lee urged a firm and of the district court's order approving the sale as quickly as possible is because these five investors the only thing that stands between them and getting their life savings back in many was in the works they had ample notice of the procedures and i would note that it objects to the sale procedures order are now on appeal but they never objected to it in front of the bankruptcy court so my argument is that that argument was waived their appeal on the notice is essentially frivolous they and judgment for the sale as opposed to hearing from everybody who's trying to and here is plainly was we defer to the debtors business judgment it was reasonable it was not an abuse of discretion for the  the reasons that your honor resided i'd like to add the additional delay that would have been involved in having this potential other party who want my side surety of payment he says well that's not running out not because we had done i have to check the records see what the payment they were offering but surely a payment what else where that legitimate business reasons you're saying thank is should be approved well the fact that the prior history was that they don't come through their deals they don't honor their deals they didn't do what they were supposed to do the  reason why the settlement failed with them previously was they didn't come up with the five million dollars they were supposed to pay the bankruptcy judge is that here is what is verbal order doesn't touch on that point it doesn't but at the but his subsequent order in his opinion that's appended to his his sale order and to is his order denying the state elaborates that that would have been an additional consideration to deny the settlement was that they didn't come up with the cash if he had known about it so he did explain it later you deadline of the march th deadline for filing proposing a bid they just simply up in court and sort of a shifting proposal it would have jeopardized the town settlement because they're not it's not certain that it actually was even the highest bid let alone the highest and best bid and that's the standard has to be both the highest and best bid given all the contingencies the prior dealing the additional delay and also your honor they didn't just want to be able to put in this additional bid for which we don't know whether they had the cash available or not or what this other entity was actually going to do they also wanted an additional auction further down the road and what this was really kind of transparently demonstrating this that they just really wanted additional delay to keep  over and over and over and over and over again because again what they've really wanted to do which is evidenced by their participate in the fraudulent transfer scheme from the beginning is to ultimately get this asset the value of the asset out of the estate without having to pay anything for it  done as quickly as we can think you're right if there's no expediting of the other appeal right then that the court will not be alerted to the time concerns i'm not saying the court would necessarily grant a motion  mean i don't know what your position is on that i'm not telling you what to do but as your own eyes for us to know if you intend to do that i hear on a suggestion and since it's a wasn't thinking of it before i will consult with my co counsel and take it very seriously i assure you  we might not granted i'm not suggesting that we would but also your annele that sees it which bear may not turn out to be young should at least be alerted to the fact that there is a time consideration and if it chooses to he time consideration it has that information up front but i'd like to go back to why the two appeals really aren't related for our purposes here only apart from whether their claim was estimated at zero or not what they are complaining about here it doesn't doesn't matter to me whether be confirmed shortly even five vester investors would be paid on their fraud claims regardless of what happens on the other appeal correct because they're a priority over over that over the other claim we believe so yes your honor and we believe the funds would go out ok and then and then they would be paid so that's why i say that the resolution of this appeal is all that we need to get the bankruptcy case done and the funds distributed to the proper fraud victims who deserve it and  context there are ways of dealing with those kinds i had an engine season as growing of funds in those things if that has to happen that obviously is not before the court but again if the court affirms today the sale order the sale proceeds will be distributed the debtors plan will be confirmed and that will happen irrespective of what is happening with their appeal on the estimation order but i submit again on the question of standing they are not adversely in pick uni airily affected by what they claim to be unfair sale procedures but on the  seat procedures were not unfair in any way shape or form rule six thousand and seven authorizes private sales there were only two bidders here who actually showed up who were willing to bid and park their cash in and actually buy this property they were the bird in the hands of the district court ruled in her opinion the debtor took the burden in the hand approach as was perfectly reasonable for the debtor to do and as a result the debtor went with the bird in the hand dealing with mr had been fraught with difficulty before they never actually showed up and presented actual bid the additional delay was incredibly prejudicial and for all the reasons that i've talked about and for the reasons we set forth in our brief i notice my time is over we do respectfully urge the court affirmed the district honors i'm going to focus on the merits in the five minutes i have remaining i do have to say please don't take my failure to respond to a number of the accusations about the we are bad people stuff as an admission that any of that was correct i just think it's irrelevant to this appeal so unless the court wants i'm going to skip it and move to the merits of why we believe it was an abuse of discretion so st i want to address this whole it wasn't my client that was going to make the bid that's not correct my client was going to make the bid under the terms of the a p a and remember that bid that we were making was we were going to take the a p a that they had agreed to with l r as it is we were going to change the name of the buyer to us and we were going to have this contingency for an option other than that contingency that is that is a ship it's not actually a contingency it was a condition and let me explain why i don't have those conditions contingency a condition that is the law you've got to have an auction and see if somebody else comes in and buy it is that what that means what it means your honour's that help me explain what the condition is yes mike national crime have a right to conduct an auction yes and if no one topped our bid we were required to buy it for the purchase price that would have been wired into escrow the day or the day after the hearing where we made the online would that purchase have occurred so the condition was that the auction would kurt would occur within thirty days or less and i acknowledge that's a thirty day delay and i'm going to explain why that if there was a topping bid then the court could approve the alternate topping been in there had been eighteen months of looking for other bins and in all of those eighteen months and the thousands of people who were solicited and the hundreds of people who submitted bids there were two only two who were found to have actual interest and have the means to be able to consummate a sale so what made you think that there was any basis for believing anybody else w the revised sale procedures which converted this from a public auction which is what the debtor initially chose and the bankruptcy court originally approved had a big deadline to test whether there was anyone else out there and the court at the debtor request vacated those procedures and canceled that big deadline two days before the deadline occurred so we'll never know for sure if someone would have us because we're going to make a bid and you have made an agreement and show your ass because your client came on the s for a price that was higher than the original stocking horse and a condition of that was cancelling the auction making it a product as one of the came in and we came in to object and councils incorrect did object at the sale procedures here in my it was only on two days merits ok so but to answer your questions your honor sorry the the cash just so we understand that there was no risk to the debtor of accepting our proposal our purchase price which was over forty five million dollars which is one million more than the price now if that means anything if it doesn't go through exactly correct your honor but i want to explain why that concern didn't exist here so plus the five million dollars to cover any  was four point something i'm sorry to cover the additional costs associated if the palm beach settlement fell through that money under the terms of our bid was going to be parked with the bankruptcy court and the debtor on day one so then the auction would occur but we wouldn't have for that and for the sale to go through at that time ask her to change hands everything to be consummated there to be no backing out by your client as it as a stalking horse better which is what our client was offering to do with no break a fee no bid protections nothing that been no way for you to back out of it or does it show that in the colloquy and i can give your honor the record cite but from the transcript at the sale hearing were counsel for my client was discussing this bid with the bankruptcy judge the bankruptcy judge was very clear that there had to be his words cash on the barrelhead no risk we agreed to that we would be a stalking horse bitter and as a stalking horse peter what you're saying as a stalking horse peter is that if there's no topping bid we'll take it at that price the cash would have been sitting there there was no risk if i could just i'm sorry  that's ok if i could just one point i would like to which is the no i'm sorry i thought you were going to tell me where in the record it was so i'm sure you are on the record in the colloquy there was the discussion of us being a stalking horse better and i will just it was or all your honor which is why there's the ambiguity that judge rosenbaum and i are discussing but i believe that the discussion as orchestrated by the bankruptcy judge to make it as concrete as possible did address this point even if not explicitly addressed what you're saying as colloquy of the bankruptcy judge it became obvious that your buyout piri were about yes and that is a regardless of what happens at the sale right and that's why the money was going to be paid to protect against any risk that sale would fall through if i apologize i know i'm already in a lot or a creditor or anything like that show ability because so what we put in your honor was a cashier's check from bank of america made out to my client's principal mr shrub for fifty million dollars  to meet the obligation to our the money immediately if i could and i apologize for going over can i just make eleven quick point on delay because the other justification is they didn't want to have any delay and i just think if you if you look at their stated reason which is that they felt my client was litigious and that doing a deal with us would lead to project a delay and i do acknowledge the auction was a delay of thirty days if you look at the deal they took they took the deal which was condition in this case back to the moon is point  conditioned on a final not appealable order so the deal they took except that there would be a final not appealable order if you all didn't appeal was you're right i'm not suggesting that it wasn't or that you should be penalized in any way for appealing but i don't think we can blame the fact that they took a deal that didn't become final until the appeals were finalized so i'm not suggesting we should blame them or are i'm asking the court to examine the logic offered by the debtors  logic and taking their stated objectives which is the following this was the testimony that they offered at the bankruptcy hearing and this is what the bankruptcy judge credited we don't want to do business with mr strub because he's the most litigious person in the world that was one of their stated reasons they then took  deal that was conditioned on all of that litigation being resolved i'm not saying we punish them your honor i'm asking if you were judging how do you benefit assume that that would go fast if if the prop if the district i'm sorry if the bankruptcy court is agreeing that that's a decent reason for choosing the deal right and the reason in part is that your client is extremely low tejas how can we then fin that it was an abuse of discretion for the district court or for the bankruptcy court to to pick that particular offer because you were going to continue to let me game i mean that seems problematic your honor i'm just asking you to take their logic as explained and examine it on its face if they were concerned that we were litigious that was their stated reason for them to take a deal conditioned on us stopping our litigation or expanding it and say that it was faster i know that's going to blame them or but but for them to make the judgment that that deal which was conditioned on the exhaustion of all these appeals was a faster way to go than waiting thirty days to do the auction that my client was proposing coming out i think went through and there was no more litigation well your honor no that's actually not true and that the separate appeal and dropping so that deal there one talks about we didn't pay the five million that was different than this deal that was a global settlement that would have involved resolving all litigation including that other case that fell through we could buy this asset without resolving the question of our secured claim the money will go into the bankruptcy estate and then we'll fight if we win the appeal we would get back in line in priority to get some of those proceeds if we lose the appeal it would go to other people we wouldn't get it you don't need to tie those two together and so i think our sale and the payment of the money to the bankruptcy estate wouldn't have been in any way tied to the resolution of the other appeal it would have been once the auction happened if there was a topping be great if not it's over so my only point your honor is that judgment that the debtors made that they're saying is reasonable and that the bankruptcy court approved thirty day delay they a i'm going to give you my answer your honor qualify i'm not one hundred percent sure i believe this appeal was expedited through in the district court and that one may not have been yes and so then the district judge