was in control or else packo's trust assets without drawing negative inference is against al or on to be individually liable for dissipation of aca trust assets that must be no dispute a fact ron had authority to direct control of those assets while plaintiff's insists there is overwhelming evidence in the summary judgment record that l ron had such authority it's simply not  does not itself establish that l ron had control over the back trust us it's a bookkeeper in some contexts might be an example of someone who may have a position of check planning authority but without authority to control the account or make decisions on it and that would be an example of something not typically be considered to have control over trust assets and i don't think it would be something anyone would submit would be liable for the compan packet trust claim this is not controversial it's borne out in the case law in fact even the cases that the district courts need to for authority on individual liability you specifically set forth that to the extent that he was signing any of the tracks these are checks that he was signing at the behest of his father moshe at his direction terms of how he was  i have a couple of questions one is that when forty thousand dollars were transferred into his personal account it seems to me there's no doubt that he had total control over those forty thousand dollars at least even if even if he didn't have control over d over more even if you needed a squatter's approval to sign checks for more the transfer of forty thousand dollars is account gave them complete control over those assets of the of the company and the nd question is that in about summary judgment at this point being and thirty against him we would acknowledge that once the funds were in his account his personal account he certainly had control over those funds but in the absence of any other undisputed facts stablish in that he had control over the packer trust assets that would merely make him a rd party transferee of those forty thousand dollars and wouldn't in any way make it retroactive  any more or less true that he was in control of the pac the trust that he became in control of forty thousand when it hits his account he explains that the transfer into the account doesn't establish  that he had control over the packet trust assets because as it was in control of oral and sent out at the direction of moses to his account that's not his control certainly once it's in his account it isn't  control he does say he didn't receive a personal benefit out of it so i i think that and in fact goes further to say that he still owed some money for salary by the company so i think that undercuts a little bit of his  when when they d were d transferred to his account but that they continue to be back the trust that simply been been placed surreptitiously in order to deceive in his account they still can continue to be the assets of the company but moved to his account in order to hide them from creditors so with not so in having total control over those assets he was exercising total control over over at least a part of the back and trust with them is the nd part of my question is whether his participation in that sarah pushes evasion an effort to defeat back and trust i think that would go too far in the characterization of the tracks were dropped too many instances where i'll run explains that the money is transferred to his account essentially at the think that this is not that this is not this is not a circumstance where the aca trust aesthetics were then transferred improperly to a rd person as a kind of a preferential transfer where where that transfer resulted in the assets becoming the assets of the rd person morale and no and no longer a pac a trust that they continue to be under the control of of moesha they continue to be the extent that they were directed their plight moshe moshe had various intent in transferring them out into l ron's account and there i don't think there's any issue as to the fact that they are package trust assets and that i'll run seems to have had control over his own bank account that wouldn't be much merit to saying he doesn't have control over them personal checking account but if he didn't have control over the funds coming into the account  which would create liability overall i believe the liability on the packet trust point then he's only liable to them to the extent he's a rd party transferees or discord which may be so even if they were dispersed has personally asked two key questions of appellants counsel specifically with regard to the forty thousand dollars that was transferred and the key point in that transfer of forty thousand dollars is on point with regard to what what must be shown for a rd party transfer route to have liability what's not required there is participation by the rd party transfer rate and that's what we have here and that's why we rely in our brief on section three hundred and twenty six of the restatement which contemplates that if an individual a rd party even has knowledge that funds are being transferred in breach of the pac a trust or any trust and they participate in the breach of that trust then that individual can have liability not only for the funds that were transferred but for the full damages to stand by the trust beneficiary and instance we have the appellant participating in the transfer of these funds as the company is winding down and as i can get into later we know that l ron knew what was in the bank accounts he provided instructions he should can comport himself when acting on behalf of the company there's no evidence that supports that and the nd circuit has said that the declaration conclusory declaration needs to be supported by hard evidence now plaintiffs was the movement in this case and they submitted fifteen indicia of what they believe is control exercised by l ron over a pack a trust assets once they did that the burden shifted to the appellant to submit proof that he was not in a position to control what he could have done was he could have submitted text messages or e mails from his father which show that yes my father told me to transfer this forty one thousand dollars into my personal account he didn't do that we don't have a declaration from moshe which says i always instructed l ron what why why why didn't  three where there are fifteen different this year you had a news check signing authority he authorized the withdrawal from orals bank account to authorize electronic transfers of funds from orals bank accounts he signed a truck lease as an owner of the business and then  personally guarantee that truck lease so it's not just the forty thousand dollars but if you look at the totality of the fifteen different elements that we had when we made this motion which the court agreed constituted overwhelming evidence like to just briefly address the issue of whether or not because this court hasn't previously has previously held whether or not an individual not an officer or director of a company can be held or shareholder can be held liable under ppaca and the mountain against mitch cam and we would encourage this court to do the same we think this case is distinguishable however from a case like mitch kim where the individual who there were two individuals in which can one of which was had check signing authority they basically issued payments to the creditors of the business in the ordinary course we think in this case when you have the fifteen dish of control including personally guaranteeing the debts of the company holding insult where the helena's help himself out as an owner and transferred forty thousand dollars to his personal bank account clearly outside of the ordinary course of business and clearly done in a way to enter plaintiffs collection efforts that that a rd person who over the trust property has notice that the trust the is committing a breach of trust and participates there in is a libel to the beneficiary for any loss caused by the groups of trust well if that's applicable to him i'm not sure it is applicable to him because it includes that phrase over all not a transfer really and in this case he in his participation in the breach of trust was the transfer really but in any event even if it is a lot applicable to him notwithstanding that he is the transfer it says that he's liable for any loss caused by the breach of trust in this case the breach of trust the translucent dollar so i'm not sure i understand how that provision gets you from a liability for forty thousand dollars the funds from or else bank accounts and or l effectively made itself judgment proof resulting in plaintiff's inability to collect any portion of the judgment that was ultimately entered in this case and so if you look at limited to the funds themselves that were transferred but to its full amount of the damages that the breach cause and so here yes it was only forty thousand dollars that were transferred but it was the participation reached not just the forty thousand dollars but everything prior to that to again we submit that elrod control wasn't manifest just with the transfer of forty thousand dollars but all of his conduct prior those transfers plus the forty thousand if you look at the bank statements that were submitted and the records let me see if you look at the thing with the recent in the records you could see that basically the account was used for personal purposes there were charges to home goods stores and the clothing stores and to restaurants so this was a continuing breach for months prior to the last you know iran knew that the company had financial difficulty was really struggling to pay its suppliers  puts in stark contrast the fact that it was not really l ron who was in control of the company it was moshe and gary l think this really knew that all along when times started getting tough that's when they started this thing being on