thank you and good morning he went into court my name is christian back and i represent miss the my intention this morning is to address the salient or predominant issue in the case and then reserve few moments for rebuttal if necessary approximately three minutes so i will rush through as best i can the legal principles in this case are not  complex the one thing that does make it complex is the existence of the receiver the salient question that we're asking this court to consider is whether a court must enforce its own order the facts of the appeal have been outlined for this court to review but the receivership in this case subject to the court's review entered into several contracts and agreements in order to collect funds or money for investors or pensioners who invested in a company a p s who were presumptively victimized by the actions of its president as they collected that money and they entered into these agreements they had to go back to the court to get its permission thereby giving the court its equitable power to review the contract to make sure that it was fair to each of the pension each of the investors in each of those victims the court in equity sat in review of every single one of those contracts and either blessed it or sent it back in this case the f c c and the receiver entered into an agreement with mr yup a condition of that contract was that the court would accept it or the contract would be void if the court accept set at that point it must have been accepted by all the parties that it was equitable to the pensioners now what happened for you get too far into this is this an equitable issue and equitable case that is your speech you're seeking specific performance is that right yes your honor i want to and so that does affect our scope of review does not it does so what is our scope and you we believe that it's dyno however if the court does accept the arguments that it is of discretion that it is based on the equitable principles that we still believe that the court did abuse is discretion and it's finding and i was giving the background here that there is this equity argument but the equity existed up until the time when the court accepted the agreement between the parties that after that the review of the contract needs to be by legal principles that support contract execution formation and ultimately it still is you as you quite clearly pointed out i mean you are under the umbrella of a  receivership and so there are still equity at play here is there not there isn't just a straight contract case and what i'm asking this court to do is outline a clear set of principles that say that the court sits an equity but even an equity that there must be legal principles that apply so that everyone who enters into a contract with the receiver can expect that the no one would enter into agreements with receivers at all and that is not in the favor or the interest of anyone who may be subject to a receivership so does your client want to recover anything that the receiver has actually recovered like these receivables and collectibles has the receiver actually collected on these or is your client trying to just have the receiver turn over things that were never recovered during the receivership there's two parts to that question let me see if i can impact of a little bit my client will not be able to collect anything that has already been collected and the case or does that mean you're giving up on anything that's already been collected absolutely that she would not be able to stand in the position of being able to collect something where there is already an agreement to collect on it other principles apply to that issue regarding the abandonment of collectibles in receivables here specifically the receiver has stated that it is not economical for her to review or to collect those but that doesn't mean that it wouldn't be economical for my client to go out and trying to correct them and that's what this case is about that's what she wants right yet the opportunity to enforce debts the opportunity to seek whatever she can get from those collectibles and receivables which may be available so what happens to those collectibles and receivables if you lose do they just go i mean they're just nobody ever gets the money for him that's exactly our point is that the receiver is not collecting them it doesn't go to the benefit of the the invent the investors or the pensioners it doesn't go to the receivership it doesn't go to the court it goes nowhere they got no one can execute anything against them so why is it that the receiver is really standing up so adamantly against turning these over pursuant to the terms of the contract to mr young i think i think part of the theory that i find from what was said by the district court in the arguments below is that there is some effort here fine out terminate the receivership say it's over we're done here nobody is going to come after you after this and if she is permitted then to pick up on these receivables the it's not over it just continues and continues is there some concept of that closing out and being final the fact of whether or not it's final is determined by the judge interim the final order on the receivership contracts performance possessory interest  rights exist outside of the receivership and it was that a theory that the that the district court relied on in denying your motion was a theory right wasn't i did why did the district court deny your motion well there  two fold reasons why the we believe the district clerk denied the reason primarily is and this was when i asked the district court specifically when he said that there was prejudice yeah and i said can you please describe what that prejudices and the court specifically stated let me be clear even if i was told to i still would not have these i'm now paraphrasing i don't know if i have the exact quote it's in the brief i would not give these to mr young ok that is not in the legal scope of the argument fair the court approved the settlement agreement right the receiver will conclude whether or not those receivership includes whether or not mr young is collecting on these receivables is irrespective of that the receiver could the problem here is that the pain that the district court is suffering here i don't believe so your honor and i believe that all of the collectibles in receivables were a list of those were turned over to the receiver i don't believe anybody on that list is a specific defrauded investor ok concern is that the investors don't get to get the benefit of misty young's efforts in collecting those funds so that's the that's the rub so to speak that is rather up yeah but your position is they're not getting it anyway they will not get it anyway number one and number two even if they would have benefited by them that was the receiver's responsibility granted to her to now there's two parts of this argument and we want to be clear is that we're arguing that the receiver failed under the terms of the condition or under the terms of the contract to even notify the court properly that they wanted to pursue them well isn't that the that kind of the basis of your claim is that failure to notify and isn't that a big part of why the district court rejected your argument on the waiver grounds because you could have made that long before you did when you filed your st motion in force district court really focused as well as the prejudice the court did a focus on waiver and the facts of the case are acrimonious between mr young and the receiver that is that the receiver continued to complain that mr young was utilizing the court system to stall out the receivership so on that st motion the court came in and said there was a condition proceeding in which needed to be met before enforcement action could happen there were several things or a couple different things under the contract lerted the district court to your problem which was this lack of authorization to proceed that could have been made at the time you made that st complaint and had some complaints about the notice but not that particular complaint was it was filed three days late that was and then it wasn't even filed correctly because it was a notice and not a motion and what was contemplated under the agreement was that there would be a motion that would indicate hey we need permission court to go after these collectibles and receivables and get permission from the court and the court very specifically set receiver yet failed ok now when we're looking at the timeline of events and i know i'm getting short on time here and so i want to make sure that i can answer all your questions the timeline of events was that immediately after this settlement agreement was entered into mr young's counsel filed an inner plater action that muddied the water here and froze the receiver's hands for turning over anything including h hurst after the money that was available to or pursuant to that agreement until december of two thousand and seventeen it and then as soon as that was turned over to her and we all of the conditions for scene had been met at that point so as to not muddy up the court and slow down and incur additional costs for the receiver we're talking about a short period of time here twelve months seventeen total months between the two motions and the order that came in was seven months after that st motion was filed we're not talking about a substantial amount of time where the receiver was like oh great she's not going to be trying to collect these things she doesn't really want these there's no justifiable reliance and even if there was even if the receiver had gone out to collect those receivables which we don't know that she did because she hasn't provided us any of that information even if she did they are now abandoning everything they didn't collect and therefore there is no harm to anyone in this case not the receiver not the and pensioners not the court the only harm here is to mr yarn and counsel coordinated and talked with the receiver regularly about the fact that there was these things that were still left done so to say that she had waived her rights that that's not factually accurate and it's a unique way to try and get to the end result that one may want but it's not fair and it's not in in the scheme of things i mean seventeen months is actually a quite a bit of time because the receiver one of the things receivers charged with is next the dish asli collecting in distributing money to the victims of a crime  or the the allegedly the fraud investors right and so seventeen months i mean that's a lot of time for the receiver to be trying to wrap things up without a question and again as to your point your honor is all of the collectibles and receivables that mr young is asking to be turned over to her are those which have been abandoned or which the receiver chooses to abandon and will not try to collect on and there's true but i'm wondering i mean the receiver says i mean the receiver took the position early on i'm going to to take i'm going to pursue these and i'm just wondering i mean doesn't the receiver have to elect not to pursue them in order for your client to be entitled to them and i think there's an argument the other way on that also but i think it's two sides and i am over reserve thirty seconds but there's two sides to this question she was late but even if she would even if mr young and forced it right then write or chose to wait until she absolutely abandon them though the rights don't change for the receiver and even if they're good receiver had collect of that money in created a benefit we're not she's not trying to collect those the only thing that she's trying to get is the receivables that are of banded and have no benefit to the receivers and i've got thank you nd say q thank you motion to inforce a settlement agreement the district court did not abuse its discretion by determining that ms deion's effort to enforce a settlement agreement on the eve of the courts term a nation of this receivership was too late  nd the court could also affirm the denial of the motion on the alternative grounds that ms de young did too little ms de young did not meet her burden of showing that the items requested meet the definition of a  collectible or a judgment under the terms of the settlement agreement or they are define terms and in any bent the settlement agreement did not obligate the receiver to assign any assets or interest i'm as de young and the court may also a firm on these alternative grounds so so do you agree that the items that mr young is seeking are are collectibles or receivables that the receivers not ever going to get the receiver pursued the collective understand how messed up my question my question is do you agree that the receivers never going to get those i would agree ok so why does the receiver care the receiver cares your honor because in order in order to now at this late stage where the receivership has already been terminated we would have to go back to the district court reopen matters figure out a mechanism by which these could somehow be assigned to  that is not what we got to look at it how it was two weeks before that court closed it i mean we can't say gosh well we're on appeal now it's already been closed we're going have to go back we have to don't we have to look at it at how the posture was before the district court well she filed her motion three weeks after we filed our motion to terminate right but it wasn't terminated yet correct ok so you wouldn't at that time you would have had to open anything correct we would have had to prolong and that really was the basis and i think judge briscoe really hit the nail on the head here were this case is about finality this is about a four year receivership where frankly ms de young sat on her rights your honor observed seventeen months went by from the time that the orders were entered in the discords my case in december two thousand and sixteen upon which judge shelby had denied the st motion to enforce as moot on the grounds that those orders hadn't been entered they were entered in december two hundred and one thousand six hundred and seventeen months then go by before and three weeks after the receiver filed her motion to enforce does ms young come forward and say wait a minute wait a minute i want these collectibles and judgments that's that's a problem that's too late the the receiver it is a problem but i mean i'm sensing that the receiver's position is is an attempt to to do justice to keep someone that she doesn't think is deserving of the assets from getting though not at all your honor not at all the receiver and the judge did district court judge looked at equitable principles we were under the umbrella of a quibble receivership matter and simply determined that it was too late so when the court refers to prejudice what's the court talking about there the prejudice that the receivership would suffer is the reliance on ms sitting idle and not pursuing her claim and reliance on that the receiver expended valuable time resources and energy and money investigating in pursuing these claims well being the briefing argument i thought was pretty good to say well that's the receiver's job stupors to pursue and in force these claims so to say that the receiver was working along and somehow that's a detrimental reliance that was what the receiver should have done and all the motions in the world by mr dionne wouldn't have stopped that progress all well mr young wants i think are basically the leftovers right well in a word they are they are judgments that are expired today are stocks and securities and random assets frankly which the district courts that i can't even really tell what these are these aren't adequately described to me by ms dionne but and so going wired why does that matter you know lead let her you know shift around and see if they are electable maybe they are just stack of paper your honor i think in order for her to be able to pursue these it would cause additional harm to the receivership we would have there would be confusion about why and the district court n out going out in trying to pursue assets on behalf of apes yes a dissolved in terminated entity further people are going to be harmed by this the judgments many of them are expired many of them aren't even in the name of american pension service is the st one on her it would just pro long things that would increase the time in expenses of a receivership that's gone on for four years and frankly for a claimant she should have brought much sooner well the receiver her the receivership could closed and that's that and the abandonment of these items to ms do young she could go ahead and pursue them i mean i don't understand how her pursued of these left overs affects the terminations of the receivership because people would be likely coming back to the receiver back to counsel to receiver with questions in confusion needing documents potentially depositions additional information in order to defend their claimed so so why you i me why does that matter she agreed to that in in a supplement so if they would've say they would have done it two weeks before you moved to close the receivership i mean ol it's doing is you say well they would have called or but chief signed that agreement that would have had that consequence if they would have come in just shortly before now well no because the or so i don't see the harm the the agreement gave the receiver the option to pursue the assets or to abandon in this instance she elected to pursue them well ultimately she abandoned she made that she said i'm going to pursue them and then she made the determination that if they were not either a collectible be a it was there were not enough money to a justify it i mean that's that's abandonment you're giving at a very strict reading aren't you no i don't think so i may think the plain language of the greenman his clear that the receiver has the option of either pursuing them or abandoning them and then this instance she did pursue them but that kind of goes to the the alternative basis which is that the agreement itself doesn't even actually obligate the receiver looking at the plain language of the agreement to have turn their apps may not on obligate but it has pretty there are lang about what the fact  quest receiver to turn over to her in in the event the receiver knots to not not plex not to pursue these asset she request at these be turned over it doesn't on the on the flip side mandate that read that the receipt return over the assets but certainly just in terms of fairness the receiver understood that if she wasn't going to parted pursue assets that misty young wanted her to turn those over to her and that didn't happen it didn't well it didn't happen because the receiver chose to pursue the assets i mean they're sievers position is that she didn't abandoned the assets that she by filing her notice indicated her intent to pursue and that because ms de young did not time we challenge that then that her challenge was untimely and that the assets they dissolve they go away just along with the result it or not abandon their were just they were pursued to no good ender no result correct and not abandoned correct then i want to dress so this clause in the agreement really is kind of meaningless she requested the receiver to turn over these collectibles in the event the receiver elects not to pursue them once the receiver elects to pursue them regardless of what happens with that if she's successful that just doesn't have any meaning  i'm sorry your honor which client i get the the collectables in judgments michelle have the young has an obligation to provide the receiver in writing a list of collectibles and judgments as a graph seven and she requests the receiver to turn over to them over to her in the event the receiver elects not to pursue them so what does that mean so it means that mr young can make a request by submitting her list of purported collectibles as you did that she said she wanted and then the receiver may elect to pursue or abandon in this instance she elected to pursue and anything left over isn't abandoned correct and this provision doesn't have anything to do with anything left over is what you're saying i guess it seems kind of meaningless she doesn't have any right to those anything that's abandoned if the receiver chose not to pursue the assets then they would be deemed to be abandoned and then we'd be arguing a guess over whether the settlement agreement ok with the mechanism it's an all or nothing kind of thing for which she would be able to be assigned or otherwise turned over to the those assets what is it sounds like your argument sort of that the receiver elected to pursue them but then didn't oh no she absolutely elected pursue and that is what the district where now i understand she elected to pursue bends she didn't pursue that she did your honor a determinations that they were old uncollectable to me little money to pursue i mean your honor in the papers in the supplemental appendix at one hundred and forty seven we list out all of the efforts that the receiver took to pursue collection she undertook extensive efforts actually in the district court and noted these in his order she consulted with her forensic accountants she consulted with the broker on the stock she engaged in independent research she engaged a collection agency express recovery services  which is a professional collection agency in the business of engaging in collection efforts they pursued each of the judgments and the litigation on ms dion's list and ultimately express recovery services advised that without filing further litigation they were going to be able to collect anything on those judgments so the receiver took her duties very seriously she did pursue by doing all of these various activities the items on but going back to the prejudice and i think going back to this issue of finality the nd way that the court held that the receiver would be prejudiced is because addressing ms dns motion at the late stage would have required the district court to basically suspend everything after four years of a receivership to have a lawsuit inside of it so what why would there have been a lawsuit how is it the receiver fulfilling her duties to the estate to engage in a lawsuit to stop someone from getting assets under a settlement agreement that she deemed didn't have any value how how is that i mean how's that because a ling her duty the court would have had to have a claim that she was entitled to the collectibles and judgments where the receiver had taken the position that she had pursued them and that the assets had not been abandoned and i mean it seems to me it could be perfunctory that they would show up and say judge we ha settlement agreement i agreed if i elected not to not go after these assets that i've given them is the young i've looked into all my i don't think they're worth anything she still wants some i want to give her an assignment and i can imagine the court when i said fine i mean you make it sound like we're going to have a two week trial over these assets that your client says are worth nothing and i just can't see that that would be the case well your honor mr young would have had to have come forward and show that the items on her list are collectibles and judgments which actually aren't looking closely at the items on her list which if everybody agreed they were i'm sorry i mean do you do you disagree with her do you contend that the things you have on her list are not because you know what they are we we contend that they are not collectibles and judgments and some are ok but you were personally but you just said you were pursuing them we were pursuing them because we were pursuing we were in good faith trying to go by the terms of the settlement sixty days then the receiver shall be deemed to have abandoned the collectable or judgment upon request within ten days after the receiver abandons any collectible or judgment michelle may request any documentation etc so it's a timing thing right so you have the sixty days for the receiver to act and if if the reason seaver does not they're deemed abandoned and then within ten days there's another deadline after that the receiver abandons then she has to request current where are we in that timeframe so the receiver filed her notice and she's been pursuing assets and and that's where we are is that the assets were pursued and then ms dia did not come forward with her claim until so there were none that were abandoned then according to the terminology of this agreement correct we don't believe that because if you pursued them all then there was nothing that was deemed banned correct ok i just would like to touch on one thing remaining fifteen seconds your honor there was a couple things that came up the contract term wouldn't have any meaning if the receiver could just say i want it and nothing would happen it would have no meaning that doesn't make any sense regarding the tim so you're saying no timely pursuit occurred within the sixty days it did not it was late when they provided the notice negotiations and when the demand the defendant mean a filing with the court it meant hate receive or give them over to us and that ongoing dialogue happened and for them for the receiver to say that this was not timely again twelve months after the receiver released one of their claims again we're at a point where the interviewer action interfered with turning over any of these assets anyway right the request was made again and again and again and it wasn't until january th two thousand and eighteen that the receiver actually provided a letter from this collection company that said hate is not worth it for us to go after these and therefore we're abandoning our they actually use that term so at this point when they say hey look as long as we pursued them that's not abandonment i think is judge carson noted that that this doesn't make any sense is that we abandon when you actually give up your rights to further collect and so the receivers argument that they pursued them and therefore under the terms of the agreement that's not abandoning i mean we have one argument thank you thank you thank you counsel for your arguments this morning