court counsel my name is carl short of our present the talent pamela short this is a diversity case from idaho concerning the esoteric rule developed in the state of idaho and there's a slide in this case we would suggest three things in this case we make try to make three points if we may number one that the court below was correct in determining the i think he had high assignment provisions of the settlement agreement entered into by pamela short at the time of her injury was valid that is a could not be assigned number two we would suggest that this court below misapplied had a host rule or law of cause i asked koppel when it concluded that notwithstanding the invalidity of the assignment that the assign or pamela sure could not keep the monies that had been provided to her by saying or finance company and assert the non or and i assignment provisions number three point that we would urge is that the court below erred when it concluded under idaho law that this was a commercial transaction case and awarded attorney's fees to the prevailing party singer finance i think conclusion of that the proposition that we would urge that there was none of that weighing that took place what is unconscionable here is fact river and and that that might be that she could pay all or part of that back but there was never a factual determination in that regard we never got there that the court like most of us simply being ethical moral people say wait a minute she shouldn't get away with something but don't we have to  the second amended judgment in the case gives them a judgment for the thirty five thousand nine hundred dollars plus interest in addition if they want their cake and eat it too they also in their judgment get that at the two thousand and six and two thousand and eleven payments in addition they get attorneys fees and cost down and the consequence if you add all of that up is i would guess at the legal no other incomes are available to it but if that's the same as the likelihood that she ever received any more of these the stream of income will be would be limited because the class time value of the money would eat it up  say listen you return the thirty five nine and we'll put you all back where you were but she'll get her stream payments and the company gets back its thirty five nine and nobody gets any attorneys fees and everybody goes home judge announced his tentative ruling that the he was going to determine that it was simon was invalid and suggested that what you said that she returned the money plus a and i also suggested in an a briefing to the to the court that the remaining issues concerning how and why she should pay this money back the circumstances of that repayment and  and the contract was not assignable it was very way and is between the two parties whether it was unconscionable for her to retain the money appeal and the parties have put certain issues on the table for us to decide and while you know certain i why i might be sympathetic to certain things you know given another procedure but here essentially you're asking us to  you want you know you want her to keep the assignments you know you're asking this court to you know i'm trying to say what remedies we have at this point because that as party as you put this in another posture or not as a settlement conference you know we're not talking pre negotiations or anything along those lines you filed briefs and the way i see it i mean you're asking you want to keep you want to keep the payments and not return what she's gotten and not pay attorney's fees correct that would be correct all right and the poly respondent is saying affirm the court right  i'm sort of seen it as i have a choice between your position and the know i think you know i mean is that i think you do have that i mean there's i do have a legal trace have anything in between i guess is what i'm saying because that's that's what the discussion was about and i write very well had i had it in the district court judge a hand i you know been involved in some sort of negotiations but i'm seeing it in terms of you both put this in a different posture before this court and the alternative that i see your honor is that the possibility that this court could that it's judge nelson is it just doesn't smell right but is that the functional equivalent of findings in a legal determination that it doesn't smell right like she should be a stuff and that's fa determination was not made judge refaeli took a look at with of this and said it didn't pass the smell test he then the terminal whether on a waning of the equities between these two parties whether it's unconscionable for her to keep the money and retain the benefit of the bargain and she entered into the sort of funny hard punish them to punish thing or well rationalize somehow a discount rate of eighteen to twenty five percent whatever this would amount to and they knew the think the agreement was that she wasn't supposed to do it should they did it anyway there's a plethora of cases around the country where they entered into like kinds of arrangements and dealings and so they knew what they were going so maybe punishment is not a bad idea that's between the two of them and if she had thirty five thousand nine hundred dollars and that would end that that might be a result and that might be a nice think but there was no determination that she hand the capacity to write a check for thirty five thousand one hundred dollars the court below did not say write a check for thirty five thousand nine hundred dollars and this will all negotiated in the posture as they approach trial or like in a criminal case maybe a person had an opportunity to talk take a certain guy she added plenty then i got a trial and then they're convicted and they get a different sentence and they want to come back to what they could have done before sort of an adjudication and here maybe she has certain options prior to the court making its decision but once the court made its decision then we're stuck with the decision and then we've got her a review and on appeal back the thirty five nine and then she's entitled to all the payments now if you get that kind of a you know judgment i mean you know from us we're estoppel doctrine and what we're talking about here is whether the distinction between whether one has a right or one has the power to sign a settlement i there it would seem to me i'm concerned about the fact that this is an issue that would better be left to the idaho legislature to make a determination about that and for the you know i don't see i have seen anything can you point me to anything and i feast review of all the other cases from around the country that was the conclusion he came through but there are no i don't cases on point i don't know has adopted a structured settlement act which now prohibits those kinds of assignments and require a judicial received money for the deal thirty five thousand nine hundred dollars she received legal advice that it was unlawful for her attorney and later in the context of this lawsuit she received advice the court that he was inclined that the judge was a client to agree that this was an invalid assignment and that he would set it aside but then he then ordered her to show cause and it was up to pamela short at that time to present her case she'd been ordered to show cause why she shouldn't have to return that money she did and now she's asking you to come up with a reason why she shouldn't have to give back the money let me ask you this first of all no congress set up a scheme after that well but i'm sure you know what i'm just talking about they may have missed some of these things you mean to tell me when when when she got her structured settlement our point your honor is simply that that hair was short was given the option of addressing the inequities of the situation and did not she was given the option she was ordered to show cause why the judge did not order as he ordered and she did not respond but if the judge was wrong that's what we're here about today that's correct it doesn't matter whether she what she did the mark the question before us is should the judge or how you how you're going to get the money back maybe the court might say well implying the equities of the situation here singer that knew what they were doing they were bargaining with someone who was precluded by the contract from making this very deal not unlike assume that it knew the law better than she did and that it knew that the waiver was probably ineffective then when she wouldn't give back the money he went he abandons and e address that issue that if it would have been another party it would have been it would have been invalid the assignment would have been invalid if another party was bringing the case but in view of her refusal to either give back the money or come up with a reason why he would be inequitable for him shit for the judge to order her to give back the money she was a stop to reach that issue very clearly indicated where he was going to come out on their precise issue and he was going to have issues of your agree with your and it was unlawful for the city to annex some land outside of the city of middleton it was unlawful the supreme court said it but you can't assert that unlawfulness because you took advantage proposals to come up with some argument why his proposed order was an equitable and she did not do what she simply said i wanted all and that's where she  dug her into a very very deep hole and he made it very clear that he didn't want her to go there and he gave her every opportunity not to dig yourself into that hole and she she first amount of money saying you're turned over to her was how much thirty five thousand one hundred dollars when was that that was the first payment when she first made the deal and i can't  judge refeeding in the when he was addressing equitable a star was not warning to was not going to give singer the benefit of this this deal  because he says they went in with their eyes open when he applied that doctrine of course i stop and he said that she is going in with her eyes open on her refusal to just give back the money and walk away from the  or at least come up with some reason why she shouldn't and she did neither she just if i were to articulate your argument in the past light it would be that she was given every that you know about these public policy issues as far as structured settlements are concerned that you know about this when we entered into the structured settlement you know when you were making all these deals  she entered into this deal a singer finance minister and i was absolutely correct she called them she sought out on the t v she called them she didn't talk to her lawyer i've represented her for years she never called a lawyer she never did anything thousand two thousand and one the payment came and the payment came and she started spending part of it and then we got a call from singer finance appropriately saying where's our money that's the first time the lawyer knew  applies when a person asserts a claim a position inconsistent with the position previously taken with knowledge of the facts and of his or her rights to the detriment of the person seeking application of the doct i don't have any trouble and i like to think of myself as as moral and decent anybody else i don't have any trouble suggesting to this court or as i suggested a judge or a feeding when you weigh all that's an issue here between the two parties i unconscionable that's an element of the q l element of cause i stopped or is it unconscionable in these circumstances that this person received thirty five thousand nine hundred dollars that singer financed gave to he he did that he did that and i have great respect for geography in that regard but he did it without a record he did it without that wayne of the balancing he didn't he didn't have her he had no way enough of the two parties whether it was unconscionable as between the two of them as white all are required he he it didn't pass the smell test and i understand then it at first blush you don't pay much most of us just i understand your argument better now you know i could have i could personally i could have a lot more sympathy with them than in the in the in the discount rate to take the exact and i think that there's some course you suggest that that's part of the cost of doing business and that's why they do it that discount rate was what eighteen always careful planning and financial security for the victim and his or her family can be unraveled and then stand by factoring company offering a yash at a state that's what happens next month or next year when the law from the factoring company has gone in the stream for payments for future financial support is no longer common in the structured selma factoring transaction placing injured victims in the very predicament that the structured anyway and that's precisely what happened in this case she sold her stream of income at a significantly discounted rate to her just advantage thank your honour's