pled guilty and was convicted of defrauding several banks for tens of millions of dollars and for his part mr osborne was not involved are you representing both here one yes the parties are at lined on appeal  after the crimes were committed the osbournes did get a divorce in the divorce proceeding the division of property the decree split up all the property obviously one of the interests was in a florida lawsuit which sought to recover lost property value of a home the home experience flooding after nearby development and assume we know the basics ok you're honored the two basic issues in the case the two prominent issues in the case are whether the whether the home actually qualifies as an asset that is covered under the relevant statute here the other the other issue is with regard to this florida lawsuit whether whether summary judgment was properly granted now in the home garden is fairly simple the statutes require that in order to prove fraudulent transfer you must st establish that there was a transfer to stablish there was a transfer you must have an asset or an interesting a sset and statute defines an asset as the property of a debtor but does not include property to the extent it isn't covered by a valid lien and i think big it's underwater i mean no pun intended  yes i think the important thing to think about here is that if for example the property value was one hundred dollars greater than the debt on the united states would only be entitled to assert a lien on that one hundred dollars in this case since the property value at the time of the transfer was significantly less than the debt on it the united states actually trying to sort of lean on what was effectively negative dollars at the time it seems that congress was probably intending to protect the interests of the primary mortgage lenders on any given property as if it's in covered by a debt you know the united states of america does not want to come in and take that interest away from the people who helped to you know get it in  the st place for the people about these homes now if if in protecting that if the united states can only go against the property value above the debt doesn't seem to me to be consistent with that that they can somehow go against this of that appraisal obviously had an interest in low balling it because the lower the number was the greater the damages in the lawsuit for which it was generated right i mean but that said it's a thirty year person and it's an estimate and they don't seem to have one yeah this is ultimately an appeal from an order granting summary judgment at minimum there's a fact question about the value at the time at base the order should not be sustained for that reason what is the point in time exactly again that we're looking at it's the time of the transfer yet so the united states has conceded in their briefs that we are looking at the time of the transfer of the statute again the actual transfer of the home was around it was right after the rest yeah it's around august th teen i mean they're roughly concurrent it's at the same time also and i think that the thing to point out is that at that time you know obviously there's this whole criminal proceeding going on and obviously the parties are interested in their own way in it at that time though when when the home was under figurative water mr osborne paid a one hundred dollars for it now that he wasn't gaining anything ultimately he was paying he was losing one hundred dollars to further lose i guess to further take on more debt for himself you know i guess the united states is claiming that he's self interested in this and that we've obviously got this he got this appraisal that is a lowball irrelevant i would make two points st of all it's not clear in the record where the united states is pointing to explain that it is appreciate in value i mean it's clear that the united states has the sense that it's appreciated value but there aren't any record citations in the brief as a transfer it's not a transfer so i think that's the basic point the equitable just one of the value to save it as a transfer it seems to sort of it's sort of this back end loop around it's like trying to backdoor in to qualify as an asset and i would argue that that's inappropriate but that is ultimately equitable so if this transfer happens say in two thousand and nine you know bad time in the market and the government files in two thousand seventeen or so whatever some years later by which time it's worth twice as much and you know well over the conference is that all just irrelevant is there a case that would tell us that's all relevant so we've said in our briefs to a number of cases and to opening state law in the same way i would point to those cases i mean well this is a federal statute right obviously it is of any federal authority that as we look at school lucidly to the date of the transfer notwithstanding any increase between then and say the date that suits filed we haven't been able to find a case that nails down precisely the issue in this case now part of the reason is that in a lot of these forfeiture cases a lot of these i guess  cases there will be a rested or sorry they'll be a restraining order in existence prior to the time of the attempt to transfer property certainly all of the cases cited by the united states have that problem the parties clearly were under an order not to transfer the property and so when the when you know when folks try to do these things that it shouldn't work there's there's an order preventing it from happening we haven't been able to find a case where specifically the statute is applied as it's written explaining no if if it's underwater if there's no value to this thing it's not an asset we have found numerous cases applying the identical language in that in this state statutes i mean the language is the same ultimately this court should absolutely take that authority as informative and as good advisory authority but no i guess the answer is no we haven't been able to find a federal  case i'd like to move on with my remaining time to the florida lawsuit ultimately the decision below if it's going to be sustained this court has to give credence to the idea that you can decide granting summary judgment as well the the ultimate question is whether it's reasonably equivalent value what does how does badges of fraud fit in to the question before us well  you know that goes to different elements of the of the standard here but it's my understanding i mean they still have to hold out learned of means for the court to find that the transfer was fraudulent my understanding is that you still have to prove that it is not reasonably equivalent value i mean if it's if it's still if it's a fair trade on either side i mean that well i mean looking at the terms of the creator would seem like the value of the assets are somewhat lopsided sided in favor of mr osborne the florida court is supposed to take all things into account you know this is this is not just a decree that splitting up the property this is an equitable decreed determining what is fair between the parties you know the court is supposed to take into account things that happen in the marriage that are yeah but if the parties i would presume come to the probate court and say your honor we've got it all worked out here's a ten page agreement with all this stuff ford mustangs whatever and he's getting this we're getting that i mean what probate judge is really  through that and say well wait a minute i think the she should get the older mustang and he should get the minivan i mean nobody's going to do that right i would respectfully disagree with court in my brief experience working in domestic relations cases i think courts often get very involved in the details of it as well we don't really have anything in the record here telling us that that is true ultimately the united states has to meet their burden to get summary judgment in this case you know all we're looking at is the decree now you know can you can i tell you that four cars is worth it is not worth two cars no i can't i don't have a dollar value on either side of this transaction on the lawsuit there is no evidence in the record supporting dollar value determination and in that sense it's very hard to say as a matter of law that this is lopsided you know this seems like an obvious fact question to me why i don't understand why isn't that why would he get all d of the value of the  lawsuit which frankly could be more than the value of the house why would he get all of that when going into the divorce proceeding they own the house you know five thousand and fifty in the suit is for damages for diminished in value to the house why does he get all of that so at the time of the divorce there was very speculative value i mean we are we are ultimately looking at the time of the transfer at the time of the divorce there is very speculative value to this lawsuit and there  is at the time the county was not even a party to the lawsuit now that is actually the source of the dollars that are in escrow right now the county settled for a one million dollars but the county was actually not added as a party to that lawsuit until well after that time i just concluded that you know without i would conclude that the lawsuit was impossible to value at the time of the transfer because not very much had happened and it had been one million dollars settlement happened before the time of the transfer no well after holder rather than the owner of the government is is not obligated to share in the costs of the upkeep for the debtor says it's right if you're the government i'm not sure that you respond to the government's argument the government sites cases from outside of the transfer context do you have response to that as to the obligation to  well for the upkeep of the property on which yes he's asked for an offset if i understand the question correctly our response would be that we're ultimately looking to what is equitable all right well then the government puts forward this the st question is did you respond to it i don't know that we did certainly and now it's your response so my response is that the question of equity here i guess what i what i would point to is basically comes up t equity in the judge apply to quickly we would argue that if for example disagree with the equitable determination we disagree with their little germination i think you're all right you have your vote on your from government three primary reasons st appellants in no way dispute the presence of nearly every badge of fraud in this case nor could day as ms as board transfer her interest in a coastal home mere four days after a twenty nine million dollar restitution order was entered against her difficult cases here we should address the ones that they do dispute so they don't yes your honor the overwhelming evidence here shows that the drift od property did indeed hold equity in other words that the appellant's two thousand and fifteen appraisal was insufficient to create a genuine issue of material fact as to whether the property was an asset under the f a do you agree that if we disagree on that we have to reverse in that respect if you disagree ace with respect to the value of the house depends on it being no genuine issue of material fact it was worth more than in the record to create a genuine issue as to the fact that the house had equity but if i mean he the judge drudges asking well let's say we disagree if there is a genuine issue as to whether it's worth more than nine hundred and twenty six  whatever it was do you agree on that question no your honor we do not agree with that and that is because this court as well as the district court have principles of equity that it can rely upon in finding in favor of the government in this case did you rely on that below yes we did your honor we cited two section three thousand three hundred and eight which states that principles of equity apply to cases filed under the f t c p a a and we would also cite to section and transfer of an asset brings bad consequence so the asset has to have and so you want us to look at this thirty three dollars oh wait is that in the same statute it is your honor that's part of the  here but how how exactly would would we apply that what's the syllogism if the question before us is whether the property was worth more than the  data transfer it is your honor quite prot but the government would suggest that this is the perfect case to rely on that provision because of the unique circumstances of this case so this is a case where fraudulent intent is not disputed and where nearly all of the badges of fraud are present and opponents are relying on a hook in the statute to say that a single given point in time the property lacked value and therefore could not be transferred fraudulent me so we say to cases davis which is the one thousand nine hundred cases out of the th circuit and future time versus the eights that's out of the middle district of georgia now those cases were decided in the context of a chapter seven bankruptcy but there analogous because the doctors transferred an interest in real property with the intent to defraud their creditors and the debtors in those cases argued that it wasn't  fraudulent transfer because the assets lacked value and in both of those cases the court said to hold that there was no fraudulent transfer simply because the asset lacked value at a given point in time would be to reward th the value would that make a difference it i mean is your is your claim for equity dependent on the fact that there might be a genuine issue of material fact here or in other words if if there were no genuine issue we know this as a lex so you'd still be making the same argument no your honor we do not concede that there is a genuine issue of material fact right so we would say that there that the court had enough evidence before it to conclude that there was no genuine genuine issue of material fact and that summary judgment was proper in favor of the government this court only needs to rely on those principles of equity and on thirty arguments you made below that you don't repeat to us here right now your honor and your list so i don't see fairly how you can rely on anything other than there is no genuine issue of material fact respect to that well we did raise principles of the brief i have to go back and look to confirm my apologies if we did not however this court does have considerable equitable powers in this case and we feel it's an appropriate case for this court to exercise those equitable powers it's in the plain language of the statute itself and if you would for a moment allow me to make the argument based on three thousand three hundred and seven dollars c which is in our brief that allows the court to adjust the value of the asset as the equities  as the equities require as you asked of my colleague in his opening argument are we assess ing the value of an asset at a single point in time and with regard to real estate it would be unfair for the court to do that and for the court to assess value as of a single moment in time because of how real estate appreciates and how its value fluctuates over time i don't want to sound like a broken record but do you are you that yes in the in the equity in the equity section your honor yes we talked about how the court can adjust the value of the asset as the equities require but do you can they change the date that's relevant it's not a matter of changing the date your honor i do agree that the date is is the date of the day we look at the value that we look at is the date of actually transfer i don't i don't think that the government would concede that either your honor is i mean what are the think that's why i asked for the syllogism of this all right i mean it would seem like ok we start with the date of the transfer and ask whether it was fraudulent that now are you telling us there's a different date range and if so what is i'm suggesting that the court can look at the whole so the only language in the statute that instructs as to value is in section three thousand three hundred and seven dollars c but that language says it's limited to for purposes of subsection b and subset section b addresses the amount of damages that the government would be entitled to if there are a fraudulent transfer was found to have happened so what we're suggesting is in the context of real estate the courts able to look at a broader picture it's not limited to a single point in time what so it's not limited to that so what is i mean it's not we're not looking at today's right so what's i  a statue what's the window with regard to real estate for example the purchase price might be instructive as to the value and in this case the as burnt out us of when i mean i just want to be logically clear about what what question are we answering value on the data the transfer you know the value on the date the suit was filed or what your what your work question the answer i think it's too limiting your honor to look at it at a at a single p of the property as a whole so thinking about this from a practical standpoint so what the united states is attempting to do here is to collect on a restitution that so it has attached a lien to all of the property belonging to the debtor when the government collects those liens it would do so at a time when the asset has maximum value so it wouldn't necessarily collect on an asset at a single point in time when its value is low for example in the context of real estate if those values go up the government is entitled to wait and collected a later date when it's the maximum amount is collectable how can we determine the date of it sounds like the date of collection is the point in time you'd like us to use but i don't know how we can value it on the date of collection when that hasn't happened yet i don't know that if i would i don't know that i would suggest it's a data collection here i'm suggesting just a more holistic look at it so something that takes into account the purchase price the home the multiple listings on the home which are also in the record so the last point like average those are kind of us to do math here right hard to do it when i don't have a formula right so i think your honour's have identified exactly why principles of equity would be the perfect me let me let me phrase where i am here let's assume the in my reading of the papers in this court how do you to assert that there's no genuine issue material that this was worth more than what is said nine hundred and thirty eight thousand dollars what was the one thousand nine hundred and twenty three all right i'm one hundred and twenty dollars no one disagrees about that number on number so it's got to be worth more than that at this point in time i'm assuming ok what evidence is there that compels that conclusion subject to  are in contradiction to the argument that it should go to a jury what is and you say well the burden is on the other side or whatever but i mean to have enough facts so that there's no genuine issue why isn't there a genuine issue that's what it just comes down to seems to me that's the question here well when the night in the answer when the burden shifts your honor to the not moving party the not moving party must come forward with significant probative evidence and and who's moving here at one million seventy five thousand dollars and i would in answer to your previous question the collins own appraiser reappraise the property again a year later in august two thousand and sixteen and reappraise it fo seventy five thousand dollars higher for a one million instead of i'm sorry it's like a disputed issue of fact to me given the other evidence your honor we would respectfully suggest that no given the purchase price and the multiple listings there was enough in the record and that the out i mean this is a case that you would point us to where you have a piece of evidence like they have and we're supposed to just steamroll that and say no it's so the court held that that was not significant probative evidence to defeat the summary judgment because there was overwhelming other evidence to support the moving party's position we would suggest there are different than evaluation  but similarly i would say a self serving affidavit is similar to an appraisal in a litigation where we don't know that this appraisers without integrity or anything i mean i've looked at it it looks professional i mean how can i look at that when they have comparative properties and the person does all the analysis and goes through it and comes up with a number that is not wildly different by any means from the numbers the government story i mean the government's tracing one hundred and twenty six dollars grand that's the difference here how could it be overwhelming that this estimate which is very carefully done is one hundred and twenty six dollars grand off i mean how my supposed to say that's overwhelming and that's why your honor if the court finds that there is a genuine issue it still has equitable power in this case to reach a just result and given that ileana transferred her interest in the property four days after the entry of the restitution that she obviously felt that there was value in the property and the fact that they're here on appeal so the disputing it i think goes to show that there is value there for her if you agree though that in order to be an asset it has to have positive value no matter how bad faith that was she could sign a letter saying i hope this goes on up in value and if it does i don't want to have to give it away so therefore i'm transferring it to you if it was at that time hasn't been developed in the district court i mean this if they were still married the transfer looks obviously extremely suspect but you know they're getting divorced you look at his deposition i mean he's done with this it appears he just wants out of this whole situation and it is conceivable that the day after this order from him just to court comes down about you know restitution all that they just make you know they make their their arrangement where they're just going to be you know there's financially separated from each other in addition to you know divorced and i mean that would be a natural time to say ok you know let's figure out how are not going to have to deal with each other if i die i want my money taking care of my child not making the government happy so that is is also evidence of fraudulent intent and when fraud is so overwhelming we believe that this is an appropriate case and in fact sort of the ideal case given the fluctuating value of real estate for the court to exercise its powers in equity thank you your honor so thank you but you druthers i'd checked our reply brief and we responded on the facts we did not specifically state that we contest fraudulent intent but we did point out that as to the lawsuit the transfer was several years before any of the criminal proceedings were going on there were you know there there were investigative steps being taken but ultimately you know say the unclean hands doctrine doesn't apply or does apply but the facts are different  are on review from an order granting summary judgment they do have absolutely have the burden and the argument they're making i mean it was remarkable the united states wouldn't collect on an asset when it is the low value well of course not because it's not an asset under the law if encumbrances on it if it's value below the incumbrances on it it's not even an asset but more importantly the united states is giving away its real interest here they think that this property has appreciate in value now they want to go after it i mean with the lawsuit the transfer of that asset happened four whole years before the amendment to bring it into this case before the prosecution all of that i mean you know at least we would contest that there is a genuine issue we argue there's a genuine issue of material fact on on the government one hundred thousand dollars well now they devote some litigating effort to prove perhaps but ultimately we're talking about something you know i believe the word anymore this was used to mean we're talking about we're talking about saying that this house was is valued you know in perhaps you can say that in two thousand and eight it had eight hundred and twenty one thousand value of like two million dollars what does that do for us i mean at the time we have we have appraisals that say that as of the relevant times these people couldn't sell this thing bigger issue is that there's just no there's just no evidence of value on the lawsuit i mean there's just no there's no evidence of what he gave for it there's no evidence of what the value was that he actually received without i'd conclude and ask