court's permission and subject to its questions i'd like to aim to reserve three minutes for a question for the panel an interesting question i think is what's the practical difference between hold on one second please the i can hear you got good ok let's start again started fifteen minutes thank you the question before the court and i think it's an interesting and novel question is what's the practical difference between a preliminary injunction and a prejudgment writ of attachment in this case the district court entered an order that effectively tied up about eight hundred and forty five thousand dollars worth of balancers personal assets which really are his only assets prior to the case really even commencing in earnest and despite the court's the nomination of its order as a prejudgment writ of attachment  order functions substance of lee as well as procedurally as a preliminary injunction and that violates the established rule that courts can't use their equity powers to tie up at defendant's assets at the beginning of the case and the obvious reasons for that are is that the defendant needs to be able to present the defense so st the way i would aim to proceed today's to lay out the roadmap as follows st if the court injury nd it can go on to address the actual grounds that the district court relied on in entering the order and there the result will be the same those specific conclusions and findings are just simply unsupported and so would be for those reasons that we would ask the court to vacate this order of begin with the court's permission just briefly by addressing the jurisdictional question as a preliminary injunction waits until the end of the case whenever that might be to address these issues mr boucher will be subject to and during the entire case without the benefit of any really of his assets he can sell the townhome he can access the three hundred and fifty thousand dollars deposited into court that will i think by the case file that we've cited in our brief or in a reputable concept then come coming in does he not know it is filed for we do and at the order i'm not familiar honestly we are my firm was not no of course bankruptcy counsel i do not know what his income was annually post chapter again and just to make sure i didn't misunderstand the chapter eleven was filed before the order was entered in this case so that's that's correct he argued that he needed that he would like funds to proceed in this litigation he order of attachment proceeded no he did not in so many words now be the argument the evidence was presented before the court that because no a corporation was in bankruptcy would be able to proceed on that isn't that important when the district court is deciding whether there are irreparable consequences from the cut rate of attachment well in this case the district court did not address the issue of whether there were irreparable consequences from the writ of attachment the district court applied utah's rules of civil procedure sixty four through sixty four see that the increase before the court now is a jurisdictional question as to whether the writ opposite there apropos consequence of mr boucher but that was an issue that would have come up for the district well wouldn't it have its if this is going to be so consequential to him wouldn't that be one of the equities that should be presented to the district court in deciding whether or not to intrude the writ well that's an interesting question because the motion was never presented as an equitable motion it was attachment you haven't said how there was anything significantly substantively different there was but you've said it's  and what respects to not a prejudgment rid of attachment as a specialized procedure that results in a writ there it's delivered to a sheriff the sheriff serves it and it's against a particular piece of property that case law that we cite in our brief i think is pretty legion that an injunction is a different kind of order it's an order that applies to the party rather to the property and it compels a party before the court to do or not do certain things here in the valley of a v the district court labelled what it was doing a writ of attachment did it not it did did you object to that point out that what was being done went beyond a writ of attachment no we didn't have an opportunity to do so there were two hearings held at that point the court was always considering what we understood to be a prejudgment writ of attachment on june th of two thousand and one teen the court issued a temporary order the did two things one instructed mr boucher not to disclose a certain aspects of the of the proceeds from the sale of the home and then other to continue on with the purchase of the townhome subject and not covering it we understood those to be temporary orders while the court gathered evidence and then some in a certain point later with an issue is order either granting or denying or issuing the prejudgment writ and by substance didn't this do exactly what the court had indicated it was going to do make sure that the the proceeds of the sale of this one  were not dissipated so the cash proceeds had to be isolated in some way and the new house being bought with the remainder of the proceeds should not be encumbered in any way was there any any difference in what the judge was trying to get done between the rid of attachment that was issued what's called a writ of attachment and what the judge had indicated would be done the judge didn't indicate how she would ultimately rule on the motion on the he after the hearing is on june th and june th she issued temporary orders doing exactly as your honor just said keeping the status quo in place and until she could marshal a decision on the final decision on the motion for a prejudgment writ my expectation would have been that once the motion was granted the court would have issued an order authorizing a prejudgment writ and then the clerk would have issued the writ and the refuse with the writ of done exactly what was done here no there it would not have done that the really what leg would have been done what was done here that could have been done through a writ authorized under utah law when a writ is issued against real property it functions as an incumbrance it's recorded that means that the property can't be transferred without the pelleas here getting a share of the proceeds of that sale here the district court went a step beyond that and simply ordered mr boucher as a party to the lawsuits and not transfer or income for the property that means he you know he can't get a loan against the property that means that even if the property value increases he can borrow against that increased equity above and beyond the amount that was charged in the in the no that's not that's not how the order was issued the writ was sought against the proceeds of the sale of the home and that was computed after some some difference in fact that was computed to be about eight one hundred and fifty thousand dollars mr  paid three hundred and fifty thousand dollars into the corps and then there was a remaining four hundred and fifty dollars approximately and that was what the course said could not be that was what the writ was seeking was that total amount but that four dollars and fifty thousand dollars  in process that was going to be used to buy a home is that right that's correct yes and the judge said if you get that home you can and cumber it right that's correct well a writ of attachment would have been for three hundred and fifty feet would have been essentially a lien for three hundred and fifty thousand dollars and that would have in essence prevented him from borrowing against it or using it for any financial purpose when it in practice maybe i don't know if the value of the property increases i suppose he could have borrowed against the equity were and into speculation here i don't i don't know what would have happened i think that's what i'm saying and in substance what the judge ordered is exactly what would have been a pain to rid of attachment i understand the going to open am i wrong in substance about the difference respect really yes i think so simply because the property value doesn't necessarily equate to the amount that was encumbered by the courts or it he may well have had to you the possibility of borrowing against the property may well if at the opportunity sell if somebody would pay it off i don't know what about the restriction on the cash from seeds that was that that didn't work other than the fact that mr bowzer was commanded to do it himself rather than a writ being issued against a bank or a trust company that did function just like prejudgment richard not enforceable by contempt of this order surely was and then once establishing the fact that this is an order against mr bowzer himself compelling him to do or not do things there simply isn't a finding  from there this unjust enrichment claim this equitable claim that forms the basis of this legal remedy of a prejudgment writ that can't be used as an end run around all and then the remaining host of issues that we raise in her brief in substance this order simply ties up all of mr palliser's assets and it does it by requiring him to do things rather than by issuing the process that the utah and the other is what is something really not just in terms of its name but in terms of its substance and injunction versus attachment to the judge and satisfy those conditions necessary for an appropriate that's what he got because it was one of the by mr bronson this isn't reaping if it were to be he or we were to get the money he would be effectively home i don't know that's true i'm sure we could although everyone noob at the time of the briefing an argument and will have an answer here in with respect to the writ of attachment what the consequences of the writ were going to be on whatever they call and if it were the case that the defendant were not capable and his legal fees as a result of being here hurt by this attachment are minds injunction that should have been raised with the district court and it still and that's exactly this once it turned out to be the case that the bankruptcy turned into chapter seven and if in fact mr valder is telling the truth about i conceding that we don't rely on the cases saying there's not an appeal from the writ of attachment and instead relying on the carson factors is am i correct about that i believe that they typically determine that has to be some kind of with respect to the imposition of whatever the her but that still doesn't mean those two different decisions are are conflated and in this case because of the without access to adequate funds to defend his case so that's number one that doesn't mean that as soon as those circumstances changed not is not a shame to go to the judge and say your honor things have changed and we now know that in our corrected if you were not able to defend litigation oh and by the way we're also in the middle of this dispute regarding jurisdiction in which imperil my client's ability to defend his case that seems to me we're going to have regardless of the jurisdictional issue something that you would want to raise with the court in terms of whether or not what they're doing is  head when you suggest a bit at the conclusion of the evidence you're hearing nobody is thinking about substantiating appellate jurisdiction and later on down the road there's no reason startling foundation for carson factors at that point also when you look at the factors that are considered for a prejudgment rid of attachment which is what the police sought not one of those factors has anything to do doesn't mention it at all with respect to