he was betrayed by his one standing counsel susan trader who went to go to work for his finance or the arab fund and using stolen information forces his company to involuntary b ever made was assisted by two law firms one of them being structure i can live in thirteen and believe you are the fifty million dollars verdict on jury against mr reagan but meanwhile the bankruptcy over one hundred fifty lawsuits were filed against brick seen as affiliates nearly all of them were dismissed at the pleading stage eventually after five years of litigation and many millions spent by mr bernstein defending himself of contribution counsel this is your case you can argue it however you want but i'm i'm thinking you're going to use your time better recognizing that we have all read the materials we are familiar with the very complex facts involved excluding fraudulent conveyance as do you agree with that yes so what what what effect this group or mexico have on this case did finish the analysis group a mexico no excludes fraudulent convey a political junction against the transfer board's proceedings or has to be an equitable remedy such a constructive trust focus media following it's not the tenth circuit but it's still a pretty good circuit the force found from enright focus media and his group on mexico that's exempt from its prescription against preliminary injunctions freezing assets cases involving bankruptcy and fraud like inventors and cases in which equitable relief is sought is that what you're focusing on i am focusing on that but if you examine focus media and frankly examine every case that was cited by the pallies and cited by the court everything they were dealt with  there's a tracing requirement i'm saying that there has to be an establishment that these funds were that the the funds were transferred were at issue and yes there has to be some sort of requirement because even in the cases that they cited such is actually been ratified by the supreme court six days ago in the and i submitted this supplemental authority this morning and provided two opposing counsel in the lewis versus united states case this one case and the government was seeking a political judgment against assets unrelated to the forfeiture and the supreme court says you can't do that you can only go after the tainted funds you can't go after the unrelated funds with this one amount of it isn't about how the government is merely a preposition creditor and i would submit to the court here that the mere fact that they have alleged project transfer claim against funds that are complete doesn't give them a right to go after any on that ok but you do agree that the lewis case is not controlling here the one we just talked about i would well i would it's very very different analysis in a very very different situation right i would submit it's distinguishable but i w the attachment think completely backwards are you saying that if somebody has a judgment and they want to attach the assets of the debtor and if those assets are not traceable to the creditor that they can attach and as i would you know you put a fact in there that was different than what i think is the fact that's involved in this case because you're saying there's a traceability requirement i what i'm trying to understand is it seemed to me you were saying that you can attach assets that are not traceable in group or make it seem to carve out fraudulent conveyance as the other without th submit to the court that it's not open because perhaps if you don't want to follow the analysis one college associates that the court cited in focus media and there's district court decisions that have specifically sedated it has to be the assets or it's proceeds to distill then i met then i ask you what how does how the homeless certainly in california and we have this whole regime i'm sure that's true and meddle in other states there's a whole system we have for creditors attaching seizing foreclosing on assets and there's no requirement in almost any instance where those assets have to be traceable to the creditor if they have assets you can go him so my question to you is given the fact that group of mexicano seem to carve out the issue about privately conveyances why should we treat assets that are allegedly conveyance any different effort differently than the assets that could be seized by a creditor in california generally that is they're not traceable you just if they have assets and they're free does not require tracing you don't have to show a previous ownership or sale of those assets and i may ask you why should it be any different in this situation come for isn't what i require tracing but it requires for prejudgment attachment under the thirty four thirty nine for it to be the transfer or its proceeds and here it's clear the record establishes the the settlement is completely ill never be able to establish that under thirty four thirty nine  will you a complete end run around drupal makes a comment because you're basically stating where they said if you want to get a prejudgment attachment there's a whole bunch a law follow that while here the plain language says it has to be the transfer or it's proceeds and if you open this up then any polluter in any fragile transfers with any permanent junction means you can attach any assets and that would run afoul of republics and in your view what should be a bottom line bottom on my name is jim walker it's a distinct privilege to appear before this court and represent wimbledon fine with respect to this appeal obviously we respectfully disagree with mr katzman and his client and the reason there is a fraudulent conveyance were fraudulent transfer playing and where there is a request for injunctive relief which is by its very nature equitable really then it is appropriate for the district court as a judge snyder has done here to enter a preliminary injunction solely for the purpose of preserving the status quo so that then the tracing that they're saying must be done can be done at a subsequent date but there is nothing in the cases that we've cited you to conveyance theory both wrong about those of those of the two material distinguishing factors from group of yes because the group a court and the courts as we've cited which we've cited this court the follow on made clear that there the cut the statute itself it allows for a judgment against a transferee for the value vs a transfer we were certain such a money damages claim in this case however the other provision which we invoke in our client also allows for the judgment against the transferee for the value also allows for an injunction against the asset transfer or its proceeds now one thing that's an important distinction to make is that they seem to ignore a very important  hundred twelve thousand dollars flange think correctly yes from the the transfer is for two million nine hundred thousand dollars the bankruptcy claim i think was for two hundred thousand so there's a delta there yes you're does that make any difference in our analysis the fact that even if the whole two million four is frozen if you will there's still money left over to satisfy the bankruptcy like even though it's not a party to the transit does it matter that yes your hon r we have argued and we have established i believe in the briefing exactly that they say that falls under the rubric of their argument that he had willfully violated the stay then they tended to kind of back off the willful aspect but claim that it was nonetheless a violation of the sta and when they when they backed off the will what they did was they came into these attorneys and they then argued well there's more than two million dollars in tourney celine's there's two point four one two million dollars an injunction and so that would crowd out in essence the remit that mr birching had to pay to trade interest the two hundred thousand dollars but the fact remains that the attorneys liens as i believe we've more than amply established were loose re at best they didn't even attach to their to their decorations  of the engagement contract establishing the party or parties for whom they were providing legal services they did they did a den of five or or make any claimants whatever the declaration that the settlement proceeds were themselves the the fruit or the product of the legal services they provided therefore providing them a lien but to make sure that i answer your question directly if you just simply look at the general asset freezes two point four two million the settlement proceeds that mr katz pins law firm received were two point nine million and he did in fact confirm that they were received and so we pointed out that certainly the terms were lutherie harm to the non completely different case he didn't even file it in our case and he filed after the fact and even in that intervention when you test is engaged in contract i think having kind of read our brief on that issue even so we don't believe that group a mix of qana has an application here because this court has not frozen an asset within the context of a simple breach of contract claim for money damages now they try to make some hay out of the fact that well you know there's no constructive looking at fraudulent strenth fraudulent transfer cases where they sought an injunction and we're seeking not just the preliminary injunction that judge snyder allowed but we're seeking a permanent injunction as well and that person injunction applies as assets or other inability to recover monetary damages well they were actually contending mr birch's declaration that he was going to dissipate these proceedings there was the trustees report i would like to address that very court's ruling judge russell makes clear that they took apparently nothing you do count as to any administrative or a state assets available to prosecute those lawsuits ok let's well and good but to suggest as they do with their br that their cases were dismissed at the pleading state to try to imply somehow that that was the result of a rule twelve motion or a disposition on the merits is simply not correct they were dismissed because they reached an agreement ultimately with the bank to court were all those cases went away because there weren't enough assets in their state to prosecute them and how in the world can the criticism of the trustee and his counsel somehow cast are there any other questions i think so well again it's a great honor to appear before this court having great respect for your time i will yield the balance of my time to the panel thank you counsel thank you your opponent is also anxious to come up again here he is lawyers always love to course they do and you're both good lawyers so we appreciate your arguments i think you and i would agree with the quality opposing counsel opposing counsel did make reference to matters that are outside this thousand yes mr bernstein and all the parties asserting legal rights consented to that because that was a first priority there are other things that are very important as to this to this trustees report that outside of this there the record that i could submit to but i'm not going to this concept of a general asset freezes being ability first of all there wasn't just a general assets they were seeking to freeze the money that was struck settlement they even said there's no weather money to fight there was a general a general of you say that it could share with thing that the company had a civic if you're talking about just that it doesn't make it four hundred twelve thousand my third point perhaps and all that's most important it doesn't matter whether it's a general asset freeze not you can sidestep the law which by the way in the mix and it was good it was a great case as graham finance year because it says the money claim for which they are seeking here is it is not is not proper it is a legal claim