good morning here on ars may please the court daniel sampson on behalf of attachments and a motion to dismiss with its attachment that this property that you say was worth a one million dollars and sell her to little was not the property of your client it was the property of the bankrupt estate which by now has actually settled and agrees with the sale that is that may or may not be true we haven't gone through with it is absolutely alleged in the complaint in fact it's at  it's a documentary in the in the in the amended complaint it is alleged in the count for wrong foreclosure that mr factor was harmed directly harmed that is an allegation that must be to be in is it true i believe it that i'm just saying what we know for sure whatever his allegation has we know that it as a legal matter this is the property of the bankrupt estate and that company has now settled and says everything's fine by us your client doesn't own the property he when the foreclosures on those properties happened right its credit gets affected by the fact that he was the signatory on those loans but the loans are wiped out that may yes your honor that the loans have been wiped out we're here because his credit was affected pershore a period of time because maybe he was going to have to pay a line that he didn't have to pay also because he is a more than eighty percent equity stake holder in d c t because again although it's the it happened after the orders that were entered by the bankruptcy court and the district court in an august two thousand and nineteen operating report by the chapter eleven trustee there remains only thirty three thousand dollars in such on secured claims to pay out there are zero dollars in secured claims to payout so any money that would have that would accrue to either mr now is turning around saying well i used the corporate form for whatever purpose i chose but now hear me out but he has nothing to do with the court he's not a corporation he well he is the managing member of the corporation he's a more than eighty woody he's the managing member he gets side what to do with it and this is an it's own of interest but the big c code is meant to protect because one there'd be money available potentially available for mr thagard to pay the there's only thirty three thousand dollars left but assuming you were to prevail which is how you're arguing your client is agree the money would flow back to not the company and the companies not part of this appeal but it would flow back to the estate and then the trustee would decide if we could establish that any access would go to activity equity as a person aggrieved at because there's only thirty three thousand dollars left in unsecured claims and no secured claims that money would flow to the bankruptcy trustee and it was that necessarily after go to mr thacker book in order for that to take place don't you have to be a person protected by the bankruptcy code you are to be within the there are two interests protected by the big boobs the code one is there will be additional money available to mr factor to pay off that although doubt a creditor of d c t one of his creditors which is the good gateway say your clime about that that they should have sell both properties at one time your argument is that one of the two properties when he didn't come up with the two million five hundred thousand dollars one cent of the two properties should have been sold but not both correct and so your argument is that notwithstanding contracts said they could sell but they should have picked one of the two they would have had the foreclosure sale and that's not only person bidding on it was the person on the debt right right so that credit bid on that and there were no other bidders that's correct but when they took the property it was it was worth more it's alleged it verified that nobody came to the court house steps and one million dollars representations as to money under his control that would be under the georgia ethics rules there's a will there's a pot of money that comes from his client under the lawyers control the lawyer is telling the other side this money is going to be released to you upon a receipt the georgia tender statute says the old the thirteen condition you can place on tender is a receipt that you're going to accept the the money because the law there's a long standing ga line i because the money was in the account and it couldn't come out of the account quickly enough apparently they asked for a few hours delay to get that and the apple eastside because they didn't what they wanted to take more the more they wanted more very it's here to pay you i've been told to send it to you in the event of a receipt that you're going to accept it and then not do it that attorney now there's now if you read the georgia supreme court disbarment proceedings every month but it seems like quite again you the question is is money in a court in a client trust account similar to a certified check and it seems like there is an awful lot of security when a lawyer tells you i have money in here sitting for here for you they had many opportunities to do the right thing they could have only recorded one deed in lieu they did and they then could have accepted the money they did and he then showed up on the courthouse steps and said again please accept the tunder they did and they wanted to take over eight million dollars to cover a two million six hundred thousand dollars debt that there is something fundamentally unfair about the bankruptcy process here and this court recognized in it in re harry ford citing to a nd circuit to a nd circuit decision called bro that one of the the zone of interest the bankruptcy and again we're here on a dismissal those are the allegations of the complaint and those the allegations that need to be accepted as true i see them well over my time and if i have a few minutes for them thank you mr sampson will hear from  quote far as the background of the case goes i assume that the courts read the backgrounds so i won't go there well get into is the question that was reserved and asked of us in supplemental briefing which is whether or not the mr thacker qualifies a foreclosure and secondly at the foreclosure sale mr factor did not and this property personally he claims an interest in the property although it's unclear in the record exactly what interest that is there is currently a trustee in chapter eleven trustee played over the debtors case and d c c systems trustee as judge carnes pointed out is already settled with my clients and has released all claims it has against them so contrary they're not creditors of my client they're not creditors even of the state of the city systems so the only way that they would get a recovery is if there is some sort of substantial contribution claim some sort of consolidation in the bankruptcy estate something else would have to happen before they could even recover and that assumes that the trustees able to renege on a settlement it's already been approved by final order of the bankruptcy court this is all very hypothetical in fact in my opinion and would case of the th circuit or the court say as follows we previously stated in dicta that attendance and objection were necessary preconditions to a party satisfying the person agreed standard and thus have standing to appeal in the order of the bankruptcy court but recently we clarified that tennison objection are not production will stand in requirements from bankruptcy cases but rather relates to whether a party has waived or forfeited its rights to appeal given order of the bankruptcy court there does it say that if you don't appear at the district court level and argue that your opponent is not a person agree that it is well in fact is just deals with whether or not this is a stand in a shoe or waiver and attack that would be to attack the settlement that the estate entered into the bankruptcy court during the pendency of this appeal correct quit he did not did he have an art he did not object to that settlement and  objection with he was going to be impacted by the settlement and that was the opportunity for a pill not to come and try to collaterally attack that order through and through this appeal  all that time to come up with cash and fund sufficient to pay off any amount of remaining funds do under the settlement they then on sunday before a tuesday for closure or send a letter that says we've got funds in an escrow that will deliver to you if you confirm that you'll accept them well there's a couple problems with that one titled already passed by the record of the  not a tender under georgia law in that it was not cash or certified funds three had a condition present to it which is a fun confirmation that you will accept this tender we will tender it was an offer to the lawyer said have would have a different situation you'd maybe say no different result instead of all these conditions he's throwing out and that he might pay if he'd just come up here it is the cash here it is the certified check right here then you would have had to make a ten being marriage sort of issue at all which is what what he was climbing in state court was that there was a violation of good faith and and that even he should have exercised good faith in just cell line and he didn't get a nap then next property if you don't have enough then you sell the nd they didn't do that and you gave them something and they gave you something back and forth as settlements goucher and that is correct sorry and if you look at the settlement agreement it's a little bit hard itself throughout the debt and do a public foreclosure the reason why the public foreclosure option was to allow the market to test the value of the property the settlement agreement specifically they point absolute discretion to record it's what i believe the term that is used is in its discretion other than in the order itself it is in its sole discretion so there's throughout the document they point has discretion to record the deeds  order exercise other remedies in the state relief order which again is the language uses exercise its remedies i'm sorry the settlement agreement says you have the absolute discretion to is part of the settlement agreement that uses language in its sole discretion and that indeed was also the word that was an ad by the bankruptcy court just clear problem clarify for me the document that says sell discretion and document it just says discretion  s the document that says sole discretion was the exhibit to the settlement agreement itself which was the form of order that the parties could present to the bankruptcy court upon an event at fault the document that says before the court subject to objection and approved by the court on the front end and then obviously approved again on the back end when we had to go back and get stay relief for that before the bankruptcy court i have two minutes starting backwards the settlement agreement says that it's within their discretion in fact it says something akin to the phrase if lender you lex to record any deed in lieu nearly six times in the although i don't dispute that it's accurate of what was in that form order but in the subtle meant agreement itself it just says simply something akin to what's the form order and in the agreement itself doesn't say sole discretion to the say absolute discretion it just says within its discretion and i and judge barnes i understand your question which was could they have negotiated something else maybe but at the time of the original settlement agreement this had been a one hundred and thirty million dollars loan at the time of the st settlement agreement it had been paid down two hundred and eighteen million dollars these two properties were there to cover one hundred and eighteen million dollars worth of debt by the time we get down to where the rubber meets the road at it's time to actually foreclose it's approximately two million six hundred and thirty five thousand dollars in debt no one no one contemplated that entity would essentially snatch eight million dollars to cover two million six hundred and fifty thousand dollars in debt and that is what the covenant of good faith and good a fair dealing is for it's a gap filling measure to fill that gap when there is some is once again you you have a sale you say that you have a sale on the courthouse steps and you think the property is worth eight million dollars nobody showed up to pay anywhere near that that i  sell want to rather than sell to we should be permitted discovery as to whether or not the actual values of these properties it was reflected in the foreclosure sale where it's essential liquidation sale or would have been properly was a war we allege that there was a one billion dollars was offered for these properties within months of the default and let s as to the practical problem here in a practical problem also deals with whether you're an angry person according opposing counsel which smacks sense to me we have now a situation where and just branch pointed out let's say he recovered and he recovers the right to redo whatever any money that comes through goes to the  stay it has settled so there's no way for the money to get to your client there's no way for it to get to the company they settled so what is the point of what we're doing here at you are they settled but in that settlement agreement everyone is he at least he had the article three standing for sure right we i don't think that that could even be disputed it is mr thacker has been aggrieved by this he's the eighty percent beneficial owner of t c t he's