of the bankruptcy court confirming a plan every organization in this plan every organization the debtors produce a solution which paid all their creditors and false and created a judge was able to determine if we're going to make this deal work there's have to have the ability to deal with the property and partially freely without and the only obligation they had interfere with their right to using the drugs made that factual determination well let me quick question otherwise i think i take your point but why would the fact and precisely the same situation as the bankruptcy court in making that determination because the essential facts were on the spirit of what much of the question is how you interpret or how you apply the facts right now i think it's not a fair question of law but on the other hand what the facts are not head of his ten million dollars transfer fee for a term that was necessary to the implementation of the plan but remember the debtors knew going into the settlement that they had to borrow money to cover certain other actually owned by the debtor the debtor had a twenty million dollar option to purchase the property so knowing him the twenty five million dollars was to be able to use to be was allowed to be borrowed against the property and that was about twenty five million dollars to be borrowed against personally the property which was given up by mr gonzales and exchanged for his getting parts will be in the which is probably worth something in excess of one hundred million dollars the point is is that the drudge was making a factual determination that this was necessary to carry out what the parties contemplated taking as a combined issue it still seems to me that you're dealing with a factual determination where deference has to be given to the bankruptcy judge who was there went through listen to way today is the confirmation hearings about what the property was in the city of treating this as an aggregation that had much more value when it's put together than eighteen parcels and the importance of having the ability to borrow money in order to main dollars would have to be borrow that money didn't come from the proper ration of the crop because the property is basically vacant parcels that are being hauled for development except for one apartment complex and so it was always contemplated that there would be funds to be borrowed again funds would have to be borrowed against the property and the bankruptcy court saw that and basically put in what was obvious to the parties to begin with and the point that bothers me we agree and then the bank somehow the back since it didn't happen didn't happen that was not a specific term mentioned on january thirty first but it was the specific term mentioned on march twenty sixth and march thirty first work thank you thank you the issue in this case is what happened on january thirty one two thousand and three that's what the bankruptcy court said it was going to do and that's what mr schwarzenegger has asked this court to do and that's what we asked this court t record on january thirty first to make a determination in the wind as to whether there was a settlement agreement and to what the terms of that settlement agreement were before i go to the rest of my argument i'd just like to make clear we want in this court our memorandum without a subordination provision because that's what we negotiated for and that's what the outline of the settlement agreement on january thirty first we don't believe the settlement agreement exists but we're willing to live with the nothing's happening with the property or what's kind of relief so i believe that there are the two loans that have been mentioned i believe there are efforts to sell it but i don't know of any efforts that have been successful case in which there was supposedly a letter of assurances as to the fact that the litigation would not be used against the employee in terms of the evaluation the attorneys couldn't agree on the language and despite the fact that it was announced on the record the magistrate judge this case is settled the ninth circuit said there is no settlement agreement because there is no no agreement about language of this simple letter and a twenty five hundred dollar case here the not a twenty five hundred dollars transaction two hundred million dollars transaction in terms of the conveyance of sixty five percent of new world that mr gonzalez didn't own to mr gonzalez and that number is based on his payment seventy seven million dollars for thirty five percent plus there was a transfer of his forty one million dollars trust deed from parcel that over to the equity interest those tax allocations are critical the record shows that the accounts for the parties  at number nine on page sixteen there is a an extensive term sheet that gets sent out by mr gonzales in february of two thousand and three right after the suppose it's all men took place conclude it this never came up with ordination did not come up until march twenty sixth and hearing before judge judge jones in the bankruptcy court so far from being on everybody's mind and far from being something that was explicitly agreed to it never came up until close to two months after the supposed its element agreement took place one time and i'd like to make is that much of the briefing seems to me to be  peripheral because talks about what happened afterwards after january thirty first what the bankruptcy bankruptcy court said doing was interpreted in the terms of that january thirty one  reference in the record whatsoever to mr gonzales agreement to subordinate to forty five million dollars worth of new financing if that was a good idea maybe it was if the debtor needed it maybe it was but if they did or needed it why didn't it show up until nearly two months after the hearing just like why isn't it in the more accurate description of what the terms of the settlement were answer and there was never an agreement on that term themselves if they chose to make a loan they start on the record that was before them and the goings on in the bankruptcy court that's really up to them so whether we have a dispute with them down the road and other issue as to whether we are we are prior to them or not regardless of whether we are prior to them if involved as memorandum is recorded he will have a cloud or a lien or whatever that memorandum happens to be on thirteen out of the eighteen parcels that comprise partial way not having to subordinate that memorandum on those thirteen parcels is affected really not having the to get on our view our argument the first ten million dollars out of the sale of a piece of property it's certainly a lot better than getting forty five to fifty five million after forty five million has already paid to somebody else paid off to other lenders so i think without a doubt their effect of relief was given by that and if this court affirms that ruling mr gonzalez will be happy i will be happy and it will be effective really judge took it up and made a determination that was an acceptable way of dealing with the problem when mr gonzales changed his mind later on and he didn't the drudge didn't limit himself to just what was said at the march thirty first hearing that's why we both