seventeen thirty forty eight h davis versus life time capital the party's on appeal h thomas more on the second versus robert g burgess at all arguments not to exceed fifteen minutes per side mr johnson for the was not appointed until some time later bonds had been distributed but the the lifetime had still had some interest at that time did they not even though is that they had no interest that they know they don't even have a beneficial they had no beneficial interest ok but what about all these other investors because under the pacs of this case it appears that the way this operation ran other investors had to pump in money to keep the thing the float had that not happened it would have lapsed in your class who have had no no expectation perceiving anything that is an argument that has been made in this case but there has been no effort to establish in the record that there was any type of commingling that meant  that my clients when they invested their monies that those monies did not actually go to the acquisition of their irrevocable beneficial interest in the death benefits and if i may your honor that's that matter has been taken up in the liberty capital case which is such a precedent of this circuit the sixth circuit relating to a similar situation much simpler facts where the the claimant there was as a sole individual claiming the death benefits because the insured had died before the receivership came into play the same type of circumstance arose and went to the district court for a decision the court in the in the co below in the liberty case rejected the beneficiaries position on the basis that the court believed that it was more equitable to actually have the the death benefits part of a pool of assets to be paid to all of the insured in a fight if i may the the liberty case which is set for twenty those fortunate enough this is the court's characterization to have been matched which is to say with the policy of the decision at that time as contrasted to those not matched in the word therefore part of a more general pool of other viable instruments in this then also failing for instance and he said that it was a balancing act which we are as judges are required to undertake any conclu that the court acting in equity is under a duty to fashion a methodology of disbursement which will do equity and comfort with what are generally notions of fairness and justice and therefore he denied the specific interest of the of the beneficiary of the particular policy and said that this is the can the equities of the grander or greater pool of investors in the via rolls with this company would take precedent this court absent the a puppet of the receiver let's assume you know the same facts and the funds come into life time what there was an insurance trust us set up and that's that's the the proceeds were payable to the insurance trust let's write citibank and other funds came to citibank and you're saying no the fun should have come to to to your investors at all instead of citibank is that what you're saying no no your honor i'm what i'm saying is the trust that was set up that caused the death benefits to go to citibank for disbursement to those who had the the irrevocable beneficial interest meant that lifetime capital inc the corporation who had originally purchased the policies had no interest in well the trust for life time does have the interest and the receiver stands in the shoes of the trustee of the trust does he not know your honor oh why not because the trustee stands in the interest of lifetime capital and by virtue of the trust lifetime capital does not have the ownership interest in the race of the trust the lifetime capital has its own assets or assert it or has no relationship to the trustee of the trust is that capital has no interest in those assets doesn't seem like the receiver and everything to do with it would certainly have to guarantee that the the other or the the interest that lifetime capital had in the obligation to pay the premiums and so following the magistrate's waters in this case i mean can you cite me another case where a party has been found liable for conversion for following court orders i cannot your honor is not it's i'm sorry isn't that kind of the end of your no no your honor it is not there are certain situations where and in i believe the distinction that that should be kept in mind here is that we are while we are claiming that the receiver personally may have acted to misrepresent among other things to the to the the district court matters relating to the particular funds here and the receiver personally may be individually liable for violating the immunity set out in the trust in the order impaneling the the trustee we also are saying that simply his possession is violating the ownership interest of my client is wrongful under the law and would be wrongful even though it's subject to a court order that's correct because the court order does not has not never has determined the ownership interest issue and that is the main reason why we are still here after fourteen years you appealing the magistrate's orders but not suing a party for conversion for following his orders that's all no no we came in that's what you're doing i mean yours well well maybe i can try to sort it out and by saying that what we had here is those with an interest in the  ownership of the death benefits here had to have a way of presenting a claim for that ownership that had ben asserted throughout the administration of the receivership but only that the two thousand and it's not the same due process argument your honor but what the court affirmed was the trial court's to determination that there had to be a level of intervention into the receivership for us to assert the ownership interest in the policy proceeds so we went back and intervened the court also the six circuit when they affirmed that said clearly that the ownership issue who owns the death benefits by virtue of the timing of the of mr jordan's death the timing of the the receivership order and so on who actually has the vested ownership interest in those proceeds had not been decided at that point and we were not barred from bringing that issue forward so we intervened the court allowed the universe the the and we are sort of the claim we sounded it in conversion to say that the receiver is the officer of the court continue to wrongfully possess the property in derogation or contrary to our ownership rights but not it is situation which o may please the court rightly or wrongly and when it came time for the hour for us to file a summary judgment motion we took a rifle shot based upon a statute of limitations because yes they had but one claim and that was a somewhat unusual conversion claim and it was so clearly untimely that we chose to pursue that as the basis for a summary judgment motion alone and we stand by that these investors knew about this issue since really two thousand and four when the receiver brought it to the court's attention posted on his website mailed it mailed a notice out to all of the investors they sat on their hands for ten years and when that ten years was coming to a close they chose to file a complaint with but a single claim that was for conversion our position is that a two year oklahoma statute of limitations applies and if it trial court again rightly or wrongly think part of the the reasoning for taking that rifle shot was to avoid some of the questions about who owns what and but let me bring some clarity to those things because i was a companion case so that as a matter of fact i think this came out of this court come from weeks later it's again like a liberty capital group versus cap well but this is one forty eight fed appendix forty six and i think it's it's  the some of the differences between the modern case and what we have here factually in the way of the interest that these investors hold and the funds they say are theirs and always have said or there's first off miss mon was the sole beneficiary of the policy that was at issue in her case and she paid to be that sole beneficiary it was a deal between her and the insured here these investors didn't do a deal with mr jordan total there were about two hundred people who had little bits of the six million dollars that ultimately came in arising out of these two insurance policies so what's the legal impact of that assignment those that  like time a promising them the benefit from some of them if there is there one i don't think there is there i mean they have an interest as a as an assignee to make to bring some clarity as far as the ownership of the policy in the various relationships as judge griffin i think good touch on the the policies are owned by a life insurance trust it was us bank to us the trustee over that trust lifetime cap beneficiary of that trust the receiver is his order of appointment was broader than what what was what was there in the mocker case by the way and specifically gave him the  those trusts all the insurance policies and the proceeds of any insurance policy which gives the ex a fast dominion control over all of that use exercise dominion and control from the beginning and if it was perfectly rightful and it was pursuant to to a valid court order  so you know whether you want to call the defense to the conversion claim given that those facts that everything he did was authorized when you were whether you want to call it a firm of defense of a privilege or immunity or simply that it was a wrongful act in the first place either way the conversion claim they filed goes nowhere on the issue of due process a they keep wanting to make the process claim they've known about this for again at this point fourteen years there were a number of other investors like them who a dozen years ago made appearances and put forth arguments and ultimately chose to accept what truly was very favorable settlement to them all of the two hundred or so other investors who were affected by this issue up settled in these folks chose not to which is certainly their right but to suggest that they haven't had the opportunity to be heard and that's all the due process owes them is notice and the opportunity to be heard not only they've been heard they've been to this court before on a very similar issue with your statute of limitations defense applied to the due process  i think it does your honor i mean because the due process claim i made there the court has issued a serious of of orders you know the fairness hearing and then additional opportunities for them to get in the case and it seems like it's it's kind of a moving target as opposed to conversion i think you can look at a date that everything happened but due process concerns all these orders that went on throughout the years i mean i think saying we can resolve this on statutory take yeah i think you're probably right about conversion but i'm not sure you're right on process they in the fair point your honor they certainly have had the opportunity to be heard and again like some others who were involved in these policies say they were if we were dissolved the due process claim in two thousand and twelve by our order i don't think so ok i necessarily because that had to do more specifically with the settlement process this well there's a long term longer term answer is it's become sort of mainstream at this point just used to be a problem about public policy you see a problem there is lot of fraud the man who was behind the scheme here is still in federal prison  and he's not the only one who's in prison and but the the practice of doing this is ongoing and it's even advertise from time to time on television that when i started this fourteen years ago there were no commercials now there are ok but that's not somewhat mean mainstream and with that on the bright side there's some regulation that hopefully protects people against the sort of fraud that that happened here which included making up ultimately making up life expectancies to make it look like people were going to die sooner so investors would get their money money back quicker and the returns would be higher so hopefully it doesn't happen like it used to  be the i think council was asked about think about who paid for these policies who kept them alive and the answer is everyone these jordan policy policies were purchased purchase with pooled money you can't trace these investors investments to the purchase or or upkeep of these policies at all it really was a team effort and to elevate the interest l before you start what what damages do you seek in this conversion claim you represent six of the two hundred investors so in the receiver for  are you asking for three percent of the proceeds i mean for the six of the two hundred or are you asking for the whole six million dollars for these six people well it's not the whole six million dollars you're out of just getting into the numbers because three of it three million dollars were paid out to the other i don't you seeking that money too no no no we are seeking what remains as the ownership we are we are seeking to establish that these individuals own the death benefits that if remaining us on the other three million dollars logically yes your hundred that's your position that is our position the lifetime in favor of the beneficiaries so that what we know from the record is that there was a representation that the receiver had to the four million dollars or three point nine million dollars there is never been a decision in determination as to who owns the death benefits for mr joe and mr jordan's policies the entire process first of all the receiver recognized that that was a legitimate question that when mr jordan died before there was ever a receivership the operation of the trust documents and everything should vest with my clients as the remaining people the ownership of the death benefits death benefits i believe that that had been done by the trust before the the decision passed away there was nothing by operation wasn't for the trust to make its determination that's where the death benefits would be paid the better the beneficial interest was i believe the the insureds so at the time that that happened going back to the question you had raised initially the judge donald had there been no trustee in lifetime and been continuing to operate there when they would have been although the full death benefits would have been paid to the people who had those what are called partial revocation of of of rights the this one lifetime capital and there's at least one other that is all of which are in receivership now whether there's been litigation involving pooling of death benefit procedure or ownership in the s situation when you have vested ownership of the death benefits i'm not that still steeped in it but it one thing that does come to mind is that these outfits like lifetime like liberty operated for years before they ended up into receivership and they paid in accordance with their contracts to people who had interest in other people who died before there was an issue there's been no effort by the  receiver or anybody else to claw back against those individuals who if there's going to be a broad concept of equity in pooling all of the proceeds that would be logically the food full an avenue is  that springs from the the characterization that there has been comingling of payments the characterization that they everybody's in the pool and so on the deliberate capital port this court said in that situation that the you must provide due process and that the that there is a distinction of fairness hearing and other hearings of that nature do not stand in the shoes of determination of ownership once that ownership issue comes up  matter related remained at large throughout and for that reason once we were allowed to intervene we continue to take advantage of the rights that the court said we had to assert our ownership interest whether it was properly characterized as a conversion to seek from the the race of the receivership what the receiver ship has possessed all along which is the the death benefit that should have been picked