had the myer simply transferred their stock in myer insurance the bank would have prevailed under the logic but the bankruptcy court in the district court used but since the meiers instead use their position as officers in the company to transfer the underlying assets of their closely held corporation we lose because we don't according to the lower courts have a claim against my insurance re provided the court with several decisions that go in our direction and those courts what they do is they focus on that language  control it was actually drafted by the oklahoma supreme court which says that fraud is a generic term which embraces all the multifarious means which human ingenuity can devise and which are resorted to by one individual to gain an advantage over another by false suggestions or by the suppression of truth no definite and invariable rule can be laid down as a general proposition defining fraud and includes all surprise trick coming dissembling and any unfair way by which another is church cheated under the supreme court's recent husky case do you even need that no i don't think we do i think i was in a husky say that fraudulent conveyance doesn't require affirmative fraudulent behavior oh absolutely i think i think that issues completely completely settled i think the only the issue that the other side is likely to remain is is whether we can still pursue this because do we have a claim against my or insurance and the cases that go our way say they do and husky certainly implies that we would because remember in husky the defendant there was the thirty percent shareholder of  corporation and he took it upon himself to dissipate the assets of all those core of those of that corporation and the court did find his claim nondestructive also in our view it absolutely resolves the opinion but i think the reason you don't want to make a hardline rule is because of the of the of the fraud of the nature of fraud and i think if you look at one zero five of the bankruptcy code which is which says that you know bankruptcy is generally a court of equity if you look at all of the of the circumstances here i mean the people least deserving of a new start are the myers i mean i don't know if you followed all of the fraud but the bank was actually the good guy in this transaction they were giving them a significant this big discount with these forbearance agreements and during while the forbearance agreements were going on all the time the meiers were misleading the bank about the source of the funds that this choice insurance was already gone they didn't have any assets those those assets have been conveyed away by the end some years before for between two thousand and eight and two thousand and eleven but they were giving the impression that choice was still in business  e pick up on this but the way mr meyer i handled his income is because he worked hard for his business whenever he works hard for his business his business generates a debt to him and that that gets paid off by the money that his business generates his revenues he never actually pays any income tax so so he's used to all this is going on and then we create even goes to the trouble of consulting legal counsel about this family trust and the legal counsel and maison lee they did waive privilege on this and i can't tell you why but the attorney did testify at trial saying that his recommendation was that they could place fully encumbered assets like their home that didn't have any equity in the trust but they couldn't place unencumbered business assets in the trust and so what do they do they go out and they put all the unencumbered business assets in the trust so so these people are at least deserving of your advantage of their creditors and and i think if it looks like a duck and quacks like a duck and it's fraud then then why why why not take the other approach the cases that we've cited which focus on the addresses other than an broad sense that that you know we want to look carefully are fraudulent conveyance but there's nothing that goes as far as as as this that's why it's a question of first impression i will i believe that the issue merits certification to the washington supreme court i prefer that you don't i think the supreme court has given you some cover and husky i think you get the you think us is enough yes i do i do because huskies founded on think both the minnesota case the state court case in the south dakota bankruptcy case provide compelling rationales for why you want to do that and then there was there was one remaining issue was whether we'd have to have a security interest in security interest loan huskey certainly provides a path for resolving the five twenty three question correct correct when i hear a lawyer then turn to a question of state law and tells a three judge panel of a federal appeals court that it's a question of first impression that springs to my mind the same question that my calling asks and that is why shouldn't we certif that issue to the washington supreme court i know i know it's more expansive in addition briefing and all of that but we are not a common law court and we should not be in the business of interpreting washington statutes that's why you have washington courts no i agree with you in that sense but i would say because the u f t a is a uniform law and because huskey addressed the u f t a under texas law you have at least  doesn't seem like it's a close call and and it protects that policy which is why i read that quote from from mcclellan i mean he if you try to create a red line rule that's what fraudsters do they sit around and figure out ways to beat them and if and when we don't have to submit cases you know we don't have to but it's sometimes the prudent thing to do specially if it's there really isn't any good case law by the washington courts or by the state court no i agree that you could i think i think you have enough protection here or do you think that because it's a uniform act and there are decisions of other courts under similar uniform and we could fairly predict that the washington supreme follows this a more fess ingenious route and so the court should look at that at that process or that process but those facts and deciding and deciding those cases and so in that sense this case fits that pattern but to the technical point is it is there ever been a case in washington decides this technical point no but but does that mean you have to certify i don't think you have to sort of  think i think it's clearly a discretionary rule and what we do should depend on a comfort level in predicting what we think the state law is right and i  point out to the extent that that court did say that you know normally the shareholders of a corporation and i personally liable for that's the corporation i'm pretty sure we could find a case from every all fifty states that say that that that's not an unusual proposition of law by any means and so there i don't think there's a conflict in that sense like like why washington would never ever do this that that's not true so the fact that that other states have done it and that they've done in these other cases that we've cited should give you the protection that that you would need  point out a few other decisions in that in that context and i mean it sounds like you you're well familiar with them but for example in i f s which is the fifth circuit case if you recall the account the bank account was actually held by a bank in korea south and they found that to be property that that are again focusing on the issue of control in other words does the debtor control the yes it's really up to you you can argue it all now and i will i will your i thank you very much with interest as to what what counsel has said at one point he told we were told that we need to draw a hard line rule and then we were told fraud is amorphous so i'd like to tell you what i think this case is about and what it's not about one the supreme court decided huskey really isn't any reason to go to the question of whether the deadest chargeable or not judge overstreet found that the  found one it was non discharged sorry nondestructive on two bases one it was a willful and malicious injury under five twenty three a six because mr meyer signed all of these  extensions and two she found that the debt was not dischargeable as the result of a fraudulent conveyance that was new law at the time husky has decided it the will under five twenty three a two you only get to get shot once so we were dead on appeal we didn't appeal it what this case is about is a very simple question and that is what was the fraudulent action that was fraudulent what were the fruits of the fraudulent transfer that were transferred if you read the husky case they talk about transfers by the debtor in this case we have transfers my third party corporation controlled by the debtor controlled by the debtor but certainly but separate but but but clearly its cooperation it's the debtor well as judge roe bard mentioned or found in his opinion on appeal had d z bank requested  determination that the corporation  should be disregarded maybe there were facts there to do that but there's no question that meyer controlled all the their eyes it's hard it's hard hard to fathom that not we have here had had d c bank i'm in and said your honor i want to pierce the corporate veil i probably would have gotten it but the z bank did not approach or ask that anywhere in this proceeding it still hasn't requested a piercing of the corporate veil before he before you today in the ninth circuit they just make this argument that well he controlled it so therefore and in washington the court asked and i've got the site it's in the brief it's on page fifteen of the of judge roll barge order corporations assets are separate from the assets of the shareholders they have different creditors  we don't know and it's not in their record what creditors myers insurance had probably they were there were some but what we have here is a transfer of assets by a third party not the debtor granted controlled by the debtor but by third party to a new corporation and then we look at what was transferred judge overstreet went through this it lent she she decided and she we considered and decided and judge overstreet is a very was a very careful judge and she decided that they bank could trace one hundred twenty three thousand five hundred dollars i think i've got that number close of assets that at one point was part of the original company and it had been you could trace this this amount to the corporation that got transferred and that write policies they couldn't deal with clients they couldn't pay they could they didn't get paid to say that it was a small thing is it was a it was an out of them in the insurance interesting world within the united states banks went out business fraudulent conveyance actions by the book trustee are still coming down one came down yesterday or two days ago but he was able to go out and build up some more business and that's this two hundred thousand some dollars worth of business that he was able to generate not from crook not from stuff that was the subject of the bank's collateral but by mr meyers going out knocking on doors and saying i'd like to sell you  insurance and then it all got transferred to the court ruled you've got one hundred twenty five thousand dollars worth of collateral that's a fraudulent conveyance it was transferred and we'll give you a judgment for the hundred twenty five thousand dollars because you had an interest in that the fact that the corporation had some other stuff that you didn't have an interest in is not something that you get to or insurance and they got a judgment it's mr meyer and yes this is minor yes over a million yeah yeah and we can we can we can we could talk at length about i mean they have a judgment yeah and that's the bank it's in bankruptcy and whatnot but you're trying to protect their assets well they're trying to do lots of things because you're protect their assets of course that's what bankruptcy lawyers do i didn't file this bankruptcy i took it over after they got sued but the fact of the matter is they're trying to protect their assets but by the facts of the matter also is that the bank is a and if you're trying to protect him from d c bank and bank is a very sophisticated international bank that set up this whole thing with brooke and got got got defrauded by brock in major ways and then was left with a mess that had had only bought his interest in from broke within thirty or forty days of when the whole thing cratered he didn't have a chance to really screw it up he just bought the thing and all of a sudden he wasn't getting his commissions and he was trying to just keep his house house and home together and that's what everyone was doing but whether they could have gotten a judgment against minor and then gone and levied on the stock and then gotten somehow to get the assets of myer insurance is not something that's before the court the bank never sought that and what it seeks to do here today is  get relief it didn't ask for what in washington the assets of corporations are separate from the assets of shareholders in washington the  creditors of the corporation are separate from the at separate from the creditors of the shareholders and if you're going to pursue the shareholder you don't get to pursue the assets of the corporation unless you can can here's the here's the corporate veil thank you thank you i'm i'm i'm becoming a little bit elderly i don't really have much else going to ask you one question certainly can you please give me your view on whether there's any issue here that deserves to be certified to the state supreme i don't think so but if i were going to pick one i guess no your honor i don't i don't see an issue that i mean the only issue i can think of is is the transfer by a corporation fraudulent on the creditors of its shareholder and i don't think that there's a case one way or the other on that i know judge rowe barred said that he didn't find one in his opinion i certainly haven't found one counsel hasn't submitted one but i don't i don't think it's i think judge roll bar and judge overstreet did a particularly good job of determining what the law is and i think that the decision by judge r a couple quick points they counsel mentions that we never requested a finding that the veil should be pierced but we did prove i think definitively that the transaction was a sham and i think you know we are in federal court and the issues were presented with consent they never objected to that testimony and never objected to how we present that argument and we split out very carefully our damages in our trial brief and if you got a chance to see it but we said very clearly that the a six claim was related to the to the one twenty one twenty three and the three eighty five was the eighty eight to a claim for including assets that were on encumbered and so so that that was very much tried by consent and so this notion that we somehow had to seek a very specific finding that the bail was pierced when when the whole purpose of the case was to show that the transfers were sham seems a little too formulaic and not indirect absolute or conditional voluntary or involuntary of disposing of up or parting with an asset or an interest in an asset and so i think the idea of