ok well it's a case of st impression because it hasn't been decided yet by any circuit court but it hasn't been decided whether i mean whether whether the property that exists in your argument that the property did the proceeds didn't enter play with each other oh i see so you're saying you're agreeing that the normal case law would suggest that this was part of the bankruptcy estate but you're saying it's a question of st impression as to whether the specific statute defines specifically defines property the state coming from a chapter thirteen and the other chapter we have no problem so if we treat this as a case of st impression we're not bound by what the bat said right we could come up with what we think the rule should be in this context right correct ok so why shouldn't the rule be that when someone who's it who's in bankruptcy or about to be a bankruptcy makes a payment to a close relative that there was no obligation to make that we don't assume at least presumptively that it really was sort of a false transfer they're going to get the money back from the relative when bankruptcy is over or the relatives going to give them a favor back in ten years and really it's still in the control of the transfer or why wouldn't that be the best rule for this to govern this kind of i think you have to just follow the text of the bankruptcy code for that bankruptcy code it asks us to talk about control so why isn't this constructive control why wasn't jason still in control all of the money that he gave to his brothers to hide in the closet well i think the case lost pretty well defined on that well what case tells us that it with you give it to your brother to you know staff why wouldn't it have been appropriate for the bankruptcy court to think he's just kind of hiding it with his brother said so so why isn't it a good rule to assume at least presumptively maybe it could be rebutted maybe he could come in with evidence saying oh no that's not what we did you know the brothers were never going to get this back but but why isn't it a kind of reasonable presumption that that it still is in control of someone who you know if you give it your kid to put in the piggy bank why isn't that still in control of the parent because that's what the case law says what she tells us that this would be the st court to say that i mean you have the bankruptcy code which says you know if it's out of the possession or the control then it's no longer part of this state you've got five hundred and forty eight tells us that control can't have a broad meaning in this context of transfers between relatives i think i think yours so if so are you saying if i give it to a family member that's one thing if i give it to wells fargo that's another thing because one is more strict and one is more successful to get back from the other yeah you would be going against the trend of case all across the u s pretty well defined that once you remove property from the state you have to use a trustee power client control your bank but so why wasn't your client burdened to come in and say i don't even talk to jason he has no ability to get this money back he never we never had an agreement that i would give it back i mean the bankruptcy court thought that he had made a transfer to you that was a bad faith transfer and it seems like maybe a normal assumption would be it was sort of asking you to hide it in the closet but so maybe you say no no that's not what this was there's there's no provision in bankruptcy court that requires my client to come forward and prove an opposite of what the trustee is trying to do i mean he's he's to defend it and we have to look at the black letter of the law you've got to look at what it specifically says and it is there something like if we're stretching it to find some sort of control and ask a question went over that and more fundamentally i don't understand how we got how you got to this place jason the brothers gave up their right and let jason take it all over it makes no sense if jason was trying to do something all he had to do was go by the original estate plan and the only thing the bankruptcy trustee could have gotten is is is jason's money they could've gotten kenneth money so the only reason that the bankruptcy trustee could get that is because the three brothers gave up their right to jason so why did that happen there was a will chase receive the money they were disclaimer that were exercised so technically those disclaimers solidified before the bankruptcy estate jason still felt obligated to follow the will gave it to the brothers twenty five percent back each but why did they ever why did they ever disclaim their ownership twenty five percent i guess my understanding that it was a tax issue and the probate court a tax issue for the the other brothers or benefit so was this a plan from the beginning to evade taxes come back you know it was a probate matter i and again i think we're getting off the subject here which is three hundred and forty nine we're not we're not really getting off the subject because at the end of the day there's no question that because of that agreement to give all of the money to jason this money became part of the bankruptcy trustee and whatever else he does with it the trustee has the right to reach out and get it like it's not and that's just basic lawyer and i understand that i i forty nine that's the power we have to look at the law why are we trying to invent words and we have the law here i mean law versus segal says you gotta follow the law you can't use equitable considerations  where you have a mere clause is an equitable i don't understand how this is an equitable consideration well this is just like every other transfer that happens how is that like any other trip if property is disposed of and a rd party now has it what transfers the trustee was operating under that power and it seems like it has that power and he has that power and it seems like you're trying to skirt that power and just say well it's not really given away doesn't really have control and the answer is of the case and is not authorized under this title or by the court correct and you are position is that this transfer was not after the chapter seven whole thirteen so now we're into chapter seven you had it kind of backwards in time we had the thirteen st and the th right so if it's removed in the thirteen and then you have five hundred and forty nine in the seven understanding is that we have a chapter seven because the trustee wanted it as a sanction for his sending this property outside the estate of the chapter and that's a whole other separate matter do but then the court ordered it converted anyways without any consideration of the black letter of the law under law versus siegel but that isn't it i mean now that's done right there is next on yeah i'd like to reserve respect and i represent the bankruptcy trustee christopher barclay in this matter i think what has just occurred here is exactly what you said is is the issue what the appellant is trying to argue is that five forty nine should have restrictions and that just isn't there there is no restrictions that say the transfer has to take place during the chapter that is taking place at that certain time five hundred and forty nine dollars is a broad power it gives the trustee which trustee the right to claw back property of the estate and that's exactly what happened here so this is just a normal exercise of that right it's that and that that's my understanding but i guess i didn't understand that came out of five exactly what the bankruptcy court and the bab stated but there's no dispute here that the i mean the foot when the brothers gave up their right that's when the property became jason's he didn't that is i don't hear him making the argument that it didn't it was after acquired because we had to wait for the sale that's correct the property was a it was a pre partition interest that jason had at the debtor had that property the bankruptcy court went into this in several different levels he she analyzed it st from the aspect of what you just said that it was a pre partition interest i'm it was pending before the bankruptcy case the sale of the of the father's property was pending before the bankruptcy state bankruptcy w filed and then is so it was clearly pre partition property the estate the brothers had waived their interest so it was g e it was the debtors in that it that all is true but that doesn't true tell us what role three  done there's a conversion and then we get into this thing of what does three hundred and forty eight mean so right everything you just said doesn't really seem to help us with that so can you talk about three sure i was addressing his that i think was a bit different but absolutely so what and what i think there is there's say where is the legislation of intent here to really say that if there was a bad faith transfer that we're going to take it out of the converted to state and that's what the case law that cited by numerous authorities says we're going to read that we're going to say well if there's a good faith use of funds joining the chapter thirteen we're going to protect the debtor in that case from a turnover motion because we think that we shouldn't preclude chapter thirteen debtors from trying hard to pay back the chapter thirteen dollars plan so we're not going to we're not going to punish them if the case is converted and that property is no longer in their state not going to be able to go after the debtor and that's exactly what happened in cells so just so i'm clear this ten inches on whether this was deemed to be a bad faith transfer absolutely so why what is our review of the because as i read this and tell i heard this part about this other tax i was trying to me look like it was a brother who was actually trying to be nice and so i'm like why is that bad faith now it sounds like there might be a little more color to that story well there's a yes and i think the quote went into great detail finding why there was bad faith it was actually the reason of the prior appeals that were does does denied but what the judge said was didn't know how much it was i mean that may have been bad faith it may have not a bad but at the end of the day they only got twelve thousand dollars and he may not have known how much that was actually worth at the time that he made that disclosure but the judge did find that he did before the the seems like an odd thing for a debtor to do to acknowledge an amount and then intentionally say it doesn't help him to say there's only two thousand five hundred versus twelve thousand correct it doesn't and then i think there was also a lot of different factors that were traded transparent through the chapter thirteen but the bottom line is the bad faith determination is now is it before us well it is it is and it isn't  clear answer so so isn't your answer that the bad taste determination is relevant to what we're considering but it's not contested anymore like don't we have to take as given the bad faith determination of plant yeah i think that was a clear limits on what you could do with your property when you're in a chapter thirteen this was beyond that yes so what do you think of the idea i proposed that there's some notion of constructive control is this like crazy under bankruptcy or would that make sense in this context i think it would make sense if you read back again to judge a man's decision i think she was trying to kind of state that that is what she thought had taken place so i don't think it's a crazy idea i think she was saying that there was this control over it in fact during the thirteen because the five hundred and forty nine of the trustee of course didn't take place till the chapter seven he could have gone after his own brothers for the transfer so he did have constructive control over it and that's what she was trying to make clear the back to the argument a little differently but i do believe that there is a basis for them and what is so do we need to identify a particular kind of legal action that would have worked to be able to say that there's constructive control or could it just be a kind of between close relatives presumption it with the when there's a bad faith transfer between close relatives that we assume it's not really or transfer i think i think there's definitely when it's when it's an insider transfer we do have that definition in various sections of the code i think there is an increased scrutiny for those types of transfers because as you stated those  hide the bad faith in this between family members so i think that wouldn't be again something that would be farfetched or something that would be on heard of in the bankruptcy code if we thought that would be the rule do you think there would need to be a chance to re but it like it should be a presumption or do you think it should be an absolute rule again looking at the historic one role of what the code does i think it will presumption would be valid fairness it seems like that's unfair by so i that there if that's the case because this does seem to be kind of a new question i mean if we were to articulate a constructive control test should they have a chance to rebut it i think they should have a rebuttal presumption i think you never know what the factors are in a given circumstance and i think that again looking at the different codes and how things play there that is not again something that is unusual to have a rebuttable presumption we said that was sort of the real explanation of what happened here and how it fits in with the control and which we should remain for a chance for them to rebut we could i don't think in this case that happened to the yeah i don't care if you have they already kind of kind of if you look at the facts in this in this case because of the waivers  because they've already told the basically the world that they had no control over this and then it was transferred back i think that the evidence was already there that this was a bad faith transfer i think if the court had i think they never discussed the bankruptcy and i think he says that he didn't really intend to give this money up even though he kind of did i'm trying to find the exact sentence but but but if he do i think you agree that there's something to that effect in this in your i get torie so if there is that enough to like at least make it that we should remain for further elaboration to figure out if they could rebut or do you think it's not enough i don't think it's enough and i don't think they ever argued it and in fact i think the stated that kenneth's arguments were never made clear about that he didn't challenge the determination in any way journeying the  during either the summary judgment motion or any of the subsequent motions or after i guess i found it it's i it was never my intent to surrender with no consideration paid to me any rights to any inheritance so i mean if that's true and jason gave him the money because they thought that he hadn't actually yielded it then maybe it's not so fair to think that jason was still in control of the money because the brother's understanding was it really became kind of not that kind of stuffing it for treason but the judge already took that in just a consideration when she determined the five hundred and forty nine action that was evidence before the court and she already looked at that and determined that that was the waivers were the evidence that was creating the issues in the st place and that thank you and just to elaborate on that the bat said at best jason had a claim against his brothers and a right to initiate a lawsuit against them to attempt to recover the inheritance proceeds to determine that such a claim and right give jason control of the in terror to inheritance approach proceeds presupposes that his lawsuit will succeed and until that claim is adjudicated he has no legal right to recover the inheritance proceeds from his brother express provision of the code that deals with possession and control how do you get around that the bat got around it by just what control means well and then the and then you know the bat defined control went to webster's dictionary and defined what control is and i'm not going to get into that i'm wasting my time can i ask a more fundamental question and i probably have very thin ice here but is that i read three hundred and forty eight it says in a converted case should consist of property of the state as of the date of finally of the petition as i understand it and i'm not familiar with this part of the bankruptcy area but when the when the court when the bankruptcy as i understand it the petition thank you for indulging correct over the debtor's of if it's referencing here is as of the date as the original petition act today want it and that's for three hundred and forty eight dollars comes in and says we start the same petition but we're redefining property of the estate which is why you say you just looked at what was there when it was conferred and that's what all the cases pretty much across america do and they bring in an exception though and they say you know if it's spent in the ordinary course ordinary and necessary course then fine it's not and that's what i was trying to say is lobby siegel completely changed that and you know it says when you have an express provision of the code you cannot contravene it i mean that's just the black letter of the law why are we trying to reinvent language that congress has created we can do that if if it's ambiguous if it's absurd if it doesn't fit the whole scheme of things but there's other ramification and remedies for bad faith conduct assuming and i think the court made a finding there was bad faith on jason find that triggers three hundred and forty two f two which says ok whatever property you have now is part of the chapter thirteen on conversions so post petition we understand your argument thank you both sides for the helpful arguments the case is submitted and we're at turn for the day