there's still approximately forty nine thousand dollars due but either way there's damage and isn't that all that's necessary because we're not talking about liquidating the going here and talking about whether or not whatever coin may remain is not before yes and did not the trial court addressed this issue specifically when he noted that in this context if a cleaner is allowed in the whole room card made from bankruptcy principles for example because of the statutory clarity i can i would really appreciate the case through all of the badges of fraud need to be reviewed again or is just the ass of receiving the funds and dispersing them as outlined by judge fisher  and given false testimony and as we noted she in fact retain the property and paid them over to other in the student creditors on par with lariat at the time and that conduct that rehabilitat conduct is very unique to this case and there are cases that we cite in our brief where that is the courts have factored that in granting relief to debtors under five hundred and three coins in fact the husky remand before the or seems to me that suggests that you look at the factors that i'm not going to give that i'm not going to even consider but i'm not going to look at that i'm not going to take into account and i'm never mind his ruling read my perception of it as it is a i'm just not going to factor that evidence and our position if you can't ignore it you can't not factor it entirely it is a narrow construction standard in favor of the dad or the debtor under transfer judgment which is really a different inquiry altogether than an actual fraud even though there's definitely overlap between the types of conduct the record the family show up here that larry it would have never collected these assets even if they may please the court opposing counsel i represent the appellee lariat companies inc this morning and we would respectfully request that judge fisher's decision be affirmed in all respects and i think i'll start by proceeding directly to the and judge fisher following a two day trial issued nineteen pages of findings of fact including seventy four separate paragraphs with one hundred and fifty six references to the exhibits and evidence twenty three references to the wrigley's testimony and followed up with which was when transcribed one hundred and thirty seven pages of conclusions of law and on pages sixty eight and sixty nine of the conclusions e c s seventy five judge fisher stated and i'll quote quote the court is convinced that barbara wigley knew the transfers from michael wigley were done with fraudulent transfer and that she was a willing participant in the scheme that's on page sixty nine dollars and that's what's being appealed today the standard is clearly erroneous and barbara wigley seeks to overturn judge fisher's iron clad decision finding that barbara wigley under the husky decision was a willing participant in the fraudulent transfer scheme and that because of that larry it's state court fraudulent transfer judgment or more specifically the un remaining portion of that judgment is not dischargeable judge fisher held it was none dischargeable and that ruling should be affirmed in all  judge fisher correctly applied the three element test sent out in the husky decision to determine whether that state court judgement was going to be non dischargeable and those three elements which are  nineteen and twenty eight of the transcript are that st michael wigley transferred his assets with the actual intent to hinder delay or defraud his creditors nd that barbara weakly possessed actual fraudulent intent and that is she acted isn't accomplished or colluded with michael wigley in receiving the transfers and then rd finally that these actions resulted in impairment or injury to lariat and judge fisher analyzed all three elements and made extraordinarily detailed findings as to each of the three elements and that is the issue presently on appeal as to the st element michael wigley transfer his assets with the actual intent to hinder delay or defraud his creditors lariat successfully proved the existence of a fraudulent transfer scheme and in fact larry it's proved it three times st in the state court before judge rosenbaum later in the state court before judge mcgill in a rd and final time in the bankruptcy court before judge fisher judge fisher found in analyzing the numerated and other badges of fraud that lariat had successfully shown the existence of a fraudulent transfer scheme and he went element by element through all of the facts in the record and concluded that that fraudulent transfer scheme and been successfully established the st element was the transfer for the benefit of an insider and that's easily established here barbara weakly was his spouse the nd element was the presence of the lawsuit that's described page thirty six dollars of the transcript and the evidence was that barbara wigley and michael whitley both knew that they were under the threat of litigation at the time that the transfer or transfers plural were made the rd element was the lack of reasonably equivalent value that is nothing was received in exchange for the transfers judge fisher in fact found that collateral stoppel applied on that equivalent value finding from the state court proceedings and he didn't rely on the state court proceedings as to all of that that is a fraud but he did find that some of them would apply in the bankruptcy context the th element was retention of possession and control of the property and the court made some very specific findings with regards to the bank accounts that haven't yet been addressed today and in addition to the transfers of the spell funs there was testimony both from barbara wigley and michael weekly trial that proved telling and specifically that testimony was how michael wigley removed his name from the only bank account he had access to and conducted all of his banking transactions through his wife barbara wigley and i think the court may well have chosen to focus on that factor and that behavior rather than other factors in determining the intent of the parties and that's because that conduct is simply so dramatic it's hard to explain away the next element would have been the length of time between the transfers and the occurrence of substantial debt and judge fisher focused on how these transfers occurred on the motion when both michael and barbara wigley knew that their assets were substantial risk the next element is the concealment element and here the court in paragraph twenty nine makes a very specific finding when it says quote this testimony regarding the motivation behind the transfer of the us bank checking account is not credible given michael whitley's continued use of the account close quote and again this is the trial court making specific findings of fact after hearing the evidence hearing the testimony of the witnesses observing their demeanor and weighing everything in its totality the next element is michael whitley's and solvency much to do's been made about the insolvency element but as the court holds it is not dispositive or determine if that is it's in essence a red herring it's just one of the many a fraud and it doesn't control the analysis and then the court goes on to consider other factors and again this is perhaps one of the most significant points but it's overlooked you think the analysis from richie capital judge fisher correctly notes that he could consider any other relevant factors in making his factual determination whether there was fraud here or not and he weighs very heavily michael weekly's own testimony at trial it's fact that the court says no and this is from page fifty seven of the conclusions of law it is as close to a directed mission as one gets in a fraudulent transfer case comma as this statement demonstrates my quick least true intent that he made the transfers as a protective measure and hoping to make it harder comma or even impossible comma for its creditors to collect from him close quote and again that it's a direct finding of fact the court having heard the testimony of the witnesses having seen all the facts of this case concludes and it's virtually an unassailable conclusion that creditors yes and it's somewhat anomalous the whole business of fraudulent transfer under those circumstances no your honor in fact i think i would argue the exact opposite that is one perspective that can be taken when looking at this but i think it's important to look at it from a different perspective namely what michael woodley did was very successfully to park or hide roughly eight hundred thousand dollars worth of his to barbara now then the nd element of judge fisher addresses the nd element is barbara weekly's fraud and her fraud is that active part dissipated in that collusion  correct me nobel prize ultimately mrs wigley did in fact pay selected creditors of mr whately only those creditors that she was instructed to pay by mr weekley only those amounts she was instructed to pay by mr whately and exactly by which means such as wire transfer that mr weirdly instructed her to so again her participation is in holding the money safe from the claims of all creditors and then deliberately and intentionally participating and paying later selected creditors that michael wigley wishes to pay and this is a fundamental point i believe because it's directly in opposite to that the bankruptcy code says that equal creditors should be treated equally does not contend it should have been paid prior to any other creditor lariat complains that its collection efforts were thwarted by the deliberate intentional acts of michael and barbara take certain assets we might have had an opportunity to collect in the state court proceedings and couldn't because they were hidden in barbara's name with michael retaining possession control dominion over those assets and then later when the risk was gone the lariat would sweep those assets or collect them in the state court judgement action michael goes back and tells barbara which of his creditors he'd like to prefer and who he'd like to pay with those fines and that is the fraud here the the hindrance the delay the impairment lariat is those assets are fra to barbara hidden and secreted we cannot get control of them we cannot apply them to the judgment and then only later when michael decides he wishes to selectively prefer to pay certain creditors but not larry it does he then exercised the control he's retained over those assets and he instructs his wife whom to pay how much to pay and how to pay and judge fisher correctly found that th was barbara's intentional decision to participate in the fraud one by holding the assets and then to by following the bidding of mr wakely when he later tells her what to do with those assets and it goes directly as well to the only proffered explanation the only legitimate basis that the with least try to advance a trial for why the transfers were made and that is they argue this isn't fraud at all we were attempting to shore up barbara wigley as a state these transfers were made for estate planning purposes well judge fisher hears that and says that doesn't hold water if the entire purpose of the transaction is to bolster barbra's the state it's completely on done when michael later tells barbara who to pay and drains the money out of her state and her estates never bolstered further so it shows again that they're both actively participating in this fraudulent transfer scheme and that the only explanation the only basis that they offer a trial explaining this conduct simply is me step back the present appeal is from the trial before judge fisher on the issue of not just charge ability so although my colleague made significant argument regarding the claim amount or the specific figures of the outstanding judgments and all the rest that's not properly before the court today what is before the court is simply the trial court's ruling as to the non discharge ability character of the state court unpaid portion of the state court fraudulent transfer judgment entered against barbara wiggly now the exact amount of that judgment is certainly in dispute and will be i'm sure bitterly litigated in the state court proceedings perhaps and other appellate proceedings but it's not properly before the court today judge fisher found and in his  order i believe addressed the fact that this is not a claims proceeding that the amount of the claim lariat they continue to possess against barber weekly is not at issue it's just rather the character amount in his pickup sea bed for his decision in his wife's decision to engage in this fraudulent transfer his liability would have ended with the consummation of his chapter eleven plan so that they in fact brought this on themselves and then secondly as to the amount of the state court fraudulent transfer judgment well that was determined in the state court proceedings a portion of it was paid through barbara's plan with the allowed claim in her plan and after application of that payment there remains an outstanding balance under the state court judgment which again judge fisher held to be non dischargeable in the area will now proceed to attempt to collect through the state court enforcement officers so i believe that addresses the court's question but if if i've missed it i'd like to know and i make sure i provide more information no thank you and with your honor's i really have little to add today i would simply conclude by saying that judge fisher's september th two thousand eight hundred decision is extraordinarily detailed and well written it is fully supported by all the evidence it should be affirmed in all respects thank you claims in this case and we think we've been unfair for the bankruptcy court to sort of shift the discussion in that manner what our point has always been a mr whately had a lease liability he paid it