be your daughter with you today and i brought my daughter with me today welcome to our court and this is the first time that i have had the privilege and honor of appearing before this court and so i am somewhat nervous i will try  convey a thanks position noble this was a case where both parties filed motions for summary judgment there were cross motions nevertheless i believe it's appropriate for the court to determine whether or not the district court or in this case the bankruptcy judge correctly applied the law and perhaps the bankruptcy judges decision may have come from perhaps a misunderstanding or an this interpretation of the facts of the case  you one question about that in a way if i understand it correctly the bankruptcy court found that the bank was  that and that determination isn't before us that mean we have to accept that so accepting the fact that the bank where the bank has traditionally stopped however i i don't think there's been any inconsistent position taken by the bank i believe that the position of the bank was correctly perceived by the lower courts as that a catch twenty two basically well your honor i would i would point to her direct the court's attention to a section five forty seven she which speaks of the burden of proof in the matter and that  section says it is it is the burden of the creditor or the party in interest to prove the elements of the defense in this case the bank isn't arguing that it is the the the credit think how it must be viewed as is that dr blix on staff was a creditor and i don't think the trustee has ever argued that that was not the case he clearly he was a creditor there is a promissory note out there there was value can but but but under the statute doesn't the contribution have to come from the same creditor well where it may be it into the plain language what this court has said is the plain language of the statute the trustee may not avoid a transfer to or for the benefit of the statute new value was given the problem is that the payments were made to f s b and fs and b was not such a creditor for her basis of having receive the new or having given new value well if the court will will indulge me i would like to read just the section five forty seven c four with the names of the parties insert a creditor in this case dr blix and staff so may not avoid a transfer for the benefit of dr blix and staff and there is no question in this case that the transfers that tell save ma me why again we've the bank has argued consistently that that substance should be taken over for why it shouldn't make i don't believe it should make as a policy or any difference that the money went directly to for security is that of through dr black and stuff and i think congress recognized that this is the kind of situation happens all the time you don't live in a one dimensional world with two people sometimes there are trials there are relationships where money why should it make any difference that the check went directly to the back the the correct analysis in this court has said that before in laguna beach motors that the new value the fans i think the result is whacking basically but i can't get around the judicial stoppel finding that the bank i i would argue that the language is that you is plain and that by inserting the relationship of the parties directly into the language of the statute the only result that can be reached is that a transfer a transfer was made be plugged into the stance you shouldn't be playing in so it will green you know davis may not avoid under this section a transfer to or for the benefit of the bank to the extent that after the transfer or the bank gave new value to or for the benefit of tel safe that with respect and subsequently value the things that judge curley did not directly apply the law in fact in her decision she said here's what the ninth circuit says here's the purpose of the new value rule and she didn't even address it in her opinion from tell say the doctor looking stuff was in january or february of ninety ninety seven which called for payment starting in the spring of ninety seven through that summer tell us they've made those payments i don't know what period of the year that she's talking about but i would makes payments to doctors well makes payments under the terms which fall under the terms of that promissory note granted the last payment appears to be twice the amount of the normal monthly outside the grace period and that's what the lower two courts of health however tell us it was not a party that no i would argue that they'll say that is bound to follow the terms of its promissory note that it made to dr blix and staff and if that's the case then the payments were made albeit a payment was skipped the payments were made on time frankly in my opinion that's the lesser of the two arguments of the weaker and probably the lesser interesting to me and i again we would not be here that was not the case i again cannot see why it should make a difference the address that tel stays put on the check the mailing address of it as a check to should make any difference the focus of the court's attention should be on the effect on  mr hart what i hear you arguing is that the statute should be interpreted in light of commercial reality the problem is that we are constrained by the language of the statute and it seems to me if there's a problem with the language of the statute not equating to commercial reality the banking industry needs to go back to congress and get the statute amended i'm not sure that we has judges have the authority in the guise of interpret in a statute to rewrite it in a way that congress should have written it if they'd been thinking about this problem iran or it may just be that we're looking at the the section differently however question so i thought maybe it is working with you could tell i was terrified before you're doing  allows for the commercial realities of the language at five forty seven g allows for the language of five forty eight allows for the purposes of five forty eight and five forty seven are the same again that effect on the sta some demand made by the bank a month late payment is made which includes to leave payment penalties later the guarantor recognizing that this company is not faltering running out of money put some additional funds into the company the only difference that we have in this case is the original documents change and course the case that i just cited is probably everything from the case that's ever been filed on behalf of the company there's probably a principle out there in most cases there is usually a personally guarantee because a lot of these companies are small companies this is just a very typical situation we're talking on as i say the only difference that we have here is the original documentation in the original  the company controlled all the draws on the lawn and actually the principal in this case wasn't even the person who controlled those draws there were independent officers of the company that  all in this kind of situation to say that the new value which was infused into the company wasn't for the benefit of the that i think what we're talking about here are three different mean that the purpose of the value defense is to encourage a vendor or in this case a creditor to continue doing business with the debtor lose nothing here that indicates the bank was continuing to do business with the debt rather the principal is still is just putting this no money on them and i think it's somewhat apparent did the principal of the company is looking at this thing his company faltering he thinks he still has a good business to put additional money on to try to keep it moving along yes and but for the because the company can it's really it comes out the same way that you're talking about here and that is that the principal winds up paying for the faults of the company in this case it happens that we have a solvent here in core and that's why the the issues has some real punch to it probably in most instances we wind up with an insolvent guarantor as well but  i think that's i think that's the parallel here is that we're talking about a situation where the documentation is not in line with us the reality is e called judicial a stop which says that we can consider that ok right i mean how do we get around that well as far as i know no one has ever argued that the bank is not the creditor the bank didn't make that choice because the bankruptcy court said you can't you're judicially stop i sorry for backing up on that one but the judicial sample argument as i understood it is that the  value in some fashion to the predator being the one who was shooting each of these games up in the first two cases the predator made the transfers to a third party and behalf of the data and in the was to transfer to the debtor from the first security bank going on to the ordinary course the feds first of all as indicated payment was ordinary in relation to the industry standard the only discussion that we've had here is whether or not the payment was ordinary as clean the party safe under the language of the statute the statute is clear the statute allows under the bigelow case courts of the least the fourth circuit has recognized that the way the language is structured allows for a tripartite relationship