minutes for we've got all i have on my client i'm asking the court to reverse the decision of the eastern district of michigan finding that my client is liable to pay two hundred and forty three thousand and one one hundred and eighty nine dollars and seventy cents and overpaid lump sum benefits paid to her as an alternate pay under the at the least general retirement plan as we've presented in our fax overpayment to miserable came after a period of six months in which mister ball repeatedly told forwards rd party administrator that the numbers were wrong repeatedly asked them to recalculate the benefit and after at least three  calculations and two occasions when the rd party administrator indicated they would do no more recalculations because they claimed the numbers were correct this was placed in the position of having to simply decide to put an end to this and take the money this woman equities damn point why should she have to give the money back i mean she knew she was getting too much she got a biz windfall i mean just from one of mental fairness why shouldn't she have to give it back well the st of all the law i don't think allows that but in terms of what you've just commented on judge the p she was she certainly had believed that the number that she got for the retroactive benefits was too high she was convinced that what she got for the future benefit was far too low it must be remembered that she had met with her former husband and knew what he was making in retirement benefits she was supposed to get at least fifty percent of his retirement benefit and he's getting a retirement benefit between five dollars and six thousand dollars but wait but wait wait wait we're not that's not part of your client i mean you she's not saying that part was inaccurate we're not we now realize she's saying that both sides of this were inaccurate ok but she didn't have that claim in front of us now well the question is what did she know and what did she not know i mean that's that's one of the arguments that are made that's made by ford here well with maybe oh baby it would help to hold  you do the argument however you wish but one of your arguments is about the plank to me are you focused i'm not out have surplus i'm certainly focused and one of the issues i agree is the retirement committee and the way that they handle this appeal yes go it go is it across a problem i mean you were on agreement the plank in many did the right thing in the sense of what the right calculation was because of course that's your money position you kept telling them the right one and they go hard it and now you want to stop them from doing the right thing so what what what are the plank you many do wrong they were tight we i see him by plan committee you're referring to the retirement committee yes ok all right the retirement committee st of all didn't make the initial determination that was made by conduit which was the rd party administrator conduit generated the denial on its own letterhead ok ok so you can go to the facts i'm just trying to figure out what is it you want us to do and but under the heading of that argument what's the what's the thing you want to add under the heading of that argument you want to talk about whether it's arbitron reaches for if you want to talk about was wrong do you want to talk about why the process was wrong what i want to talk about is why do no review is appropriate here based upon the conduct of the retirement committee yes they are required to provide a full and fair review of an appeal even though that ford argues that the retirement committee did take a look at this the nd time and there is not a dispute that they did the question is what did they do when they got the appeal and if you read the testimony of mister dupree who was the member of the retirement community he said they didn't discuss any of the circumstances that were presented in the appeal itself they just they decided that based upon the plan provisions that there was an overpayment they claim there was an honest mistake and as a result of that as a result of that she had to pay it back that was the extent of their analysis and this case and that is not in compliance with the rest of so that's my argument and that was that was my argument for the one of the bases for the full four and i did over a review of this case and what about the plan the plan language i thought my argument is heck in the language of the plan it cuts the legs out from under any right of forward to go after an overpayment here because the language of the play on establishing a claim for money damages the language here incorporates the phrase in the event of an overpayment the amount of the overpayment is to be returned the amount of the overpayment  translates to an action at law that does not translate to an action in equity what should it was shouldn't say if it was if it's if it's going to create an action in equity what what should the like said well i think there's a number of cases that demonstrate what it should have said at the least it should have said for example in gilcrest of the language is that the eight that could recover the overpayments but then it says but no more money than the amount  again we're talking about amount and when we talk about amount we're talking about an amount of money we're not talking about the specific fund that is required in order for for to be able to pursue a claim in equity mouth is there that's all i'm saying well but it depends i think and on what and what the meaning of the usage of the word is in this case the amount of the overpayments goes after a sum of money doesn't go after the overpayment specifically and it opens up my client's general assets to a claim that law which is specifically prohibited by ressa but you know in montana i know justice thomas points out that you the right rule so that's the way it was framed to the district court judge but the extent you want to rely on the equitable lead limitation point mountain i'll suggest you gotta sh as factors we talked when i talked about the necessity of a specific fund and the need to have monies that were traceable back to that fun d that was that address this issue let me can i ask of you know when you look at these dissipating cases they tend to involve individuals that either just don't have the money anymore or it's a real hardship to track it down so that really fits in with the someone who gets the judgment after an accident and suddenly they're reimbursed and the insurer wants some of that money that's the classic pattern what seems a little funny to me about this case and for the purpose of what i'm going to say treat it as a hypothetical let's assume for the sake of argument our retraining caprices review applies let's assume for the sake of argument you are required to pay it back ok so this point we're not in the question is just is this a contract obligation you can get out from under a member you suit right you sued and said no obligation so he put on the equity step to the side i just wonder for this rule it's worth fighting about in other words if you becomes a contract claim and they can come back yes ok fine let's let's not fight over the equities stuff you clearly zero the money back and we're just going to go in the law route so well could a situ anybody because it seems quite clearly your client has the resources making the st argument the only argument that really matters i'm not sure which st argument you're referring to there's we now talk about well the argument of whether you owe them money under the terms of the plan ok your suggestion respectfully that my client's general assets can be used to pay this money back it's not it's not permissible under great but she's got a raise she's got gifts to children and so on and the money that was received the money that's being claimed by forward is the retroactive taxable amount that never went into an ira never went into any fund accept this investment portfolios that she had that represented an inheritance from her mother that was that were about two hundred and sixty nine thousand dollars before she got the three hundred and fifty one dollars but all that money had to be taxed all that money had to be put into a taxable fund you can't with due respect to invade an ira because she doesn't have the money available in the taxable fund imprint impress an equitable lien on it there if there is no right to reimbursement because the language of the plan doesn't permit an equitable action then it doesn't matter what where the money  they can't go after it generally will give you get your full report which if you want to say one more thing i'm sorry go ahead all i wanted to say was if what happened is all the money went into that one dollar all the money that was left went into that one dollar tax font and that's money from which which does not equate any longer to what this what ford wants back there's not that much money in their account anymore so it's actually ford's going after her general assets which is not permanent ok thank you may please the court my name is carl nelson good morning and i represent motor company as the the plan administrator for the for general retirement plan as administrator the plan ford has an obligation to act as the steward of the plan's assets and to protect them for the collective good plan beneficiaries without favoring one beneficiary over another every dollar mistakenly paid to one  beneficiary reduces the plan assets available to other beneficiaries that's why this court has held in adams vs general motors company that if the administrator mistakenly disperses the plans limited funds they have a duty to seek the return so that the proper beneficiaries may receive their pensions the terms of the general it seems like for didn't act is a very good steward in this case when she keeps telling you you're miscalculating if you don't recalculate it why isn't argument carry some weight she's saying look you are grossly negligent and it seems to me there's a pretty legitimate argument you were a judge the bar to two responses to that  so st of all there's no question that there was a mistake made here and you know court owns that mistake for process thousands of these lump sum retirement opticians and it was less than less than no harm no foul you get the money back but here if someone is telling you you're miscalculating it what if that's not gross negligence what is well and that that was my nd point thank you your honor that because that that was my nd point in that is that if you know if we look at the record closely what's apparent is that throughout this period miserable was asking the plant to recalculate the future or the forward looking prospective portion of the benefit payment so remember there were two dollars but two portions of this benefit benefit payment one dollar was a retroactive lump sum for benefits she had collected yet in the other was the forward looking future portion of her share of her former husband pension and she repeatedly asked the plan to recalculate that forward looking portion on the belief that mistaken belief but the belief that the divorce decree the quadro in the case gave her some enhanced share of it after her husband's death she never raised questions about the retroactive portion and particularly never raced questions about the benefit commencement date which was to the calculation error here that in processing that amount the plant simply used the wrong benefit commencement date that she was never raised at any point during any of the back and forth so mister nelson just let's let's for the sake of argument you're right you know put the arbitrator prescience issue to the side but just for the sake of my question for it in the abstract is entitle to win her claim right she shot a declaration that she doesn't have to pay for the purposes of my point she loses that and she quote does have to pay ok so let's just leave it there for a nd just a recent create and all contract actions in other words there's a part of me that just wonders why we're fighting about the nd to believe in stuff if we have someone with the assets and properly there's there's an obligation now to pay it back is there any other path to getting it back in other words just finding a contract action that just says hey we've resolved this you do owe the money there is a research cramped all of that and the only way you can get the money back is the i believe that's right you're on and so that takes you back to this initial argument is just the contract the underlying pension plan create remedies in larnaca that is you there's no way around that you always have to decide that before you figure out whether there can be recruitment restitution whatever you want to call it yes i believe that's right your honor the eyes much as i would like to tell you otherwise i believe that we have to answer the question ok there are so so yeah i was a part of it and it's a kind of a judge question is there an easier way to handle this case and thanks for saying no not so  i wish i could tell you otherwise ok so the thing that is a little tricky for me it's a little it's quite unfair it's just a court judge because both of you were saying gilchrist's applies no one was she was acknowledging she had the money so it didn't look like it dissipates and case and then suddenly out appeal the longer we go particularly the walker she argues the more she's saying ah  neal never came up in the district court and i would argue that it still is irrelevant here because the record doesn't support the fact pattern that was before the supreme court in ma to kneel and explain that explain the record  neal just does that the background recall as a i'm sure the court does that the fact pattern there was that the entire account in question had st of all been segregated and then had been completely dissipated on non traceable items meaning nothing against which to seek restitution other than the defendant's general assets so the record here is different in at least three i would say three important points st the record reflects that even after dispersing portions of the that come out of let's say the t d bank account you can't your mark those has attributable to the pension versus attributable to some other preexisting source so the entire pool of money that remains in that account then can be used to satisfy the equitable lien because the dollars are indistinguishable the nd part of that question is in this case we've got a kind of an added level of complication because then money was taken from that payments how does the tax the tax thing this is that just a function of reopening tax returns or is that is there a way in which that's not part of the obligation of the works it just seems very funny to pay you back the whole amount having overpayment is traceable and recoverable in the same way because miserable can claim a tax credit in a current euro future year for the overpayment in a previous year she can demonstrate that that was an overpayment but that amount has been reclaimed she's had to make restitution of that amount and claim a tax credit going forward so in essence those dollars come back into her and can be returned to the plan is one of the implications of  has i'm not sure there is but i think i think that is the answer mister nelson can you add one thing you didn't answer the judge asked is what happens if money comes in later so this example you have five hundred thousand in the  account that's what you want she spends two hundred and fifty thousand then deposits five hundred thousand she spends it on under that sprinkler case nine traist lawyers food whatever the money comes in later can you get that again i apologize because this case presents the about added complexity of tracing right if we didn't have the issue of tracing the money that was written out and went to other sources recovering from that if we had a simpler case where the money just went into the  bank account over time that bank account dropped to some layer level and then later she put assets back into it i think under the kind of ancient equitable principles her recovery would be limited to whatever the lowest balance the t d bank because while we're not limited to what ever the lowest lowest balance in the t d bank account was at any point in time because many of the proceeds or at least arguably proceeds that were in the t d bank account were written out to go to these other locations to checking and savings accounts to iras to pay bank taxes that can be recovered right so we're not limited to the permanent assets that are in yank account aren't you limited to the lowest amount whatever you can trace is that a fair you would agree with that in other words under the case that i'm not going to i'm going to butcher two months of meal are you limited to the lowest amount because you've conceded that is it lost what you can trace versus what's not traceable i think that's right and just the bar i would say it this way once this money came into miserable state aid it got distributed in a bunch of different pockets like one like a lowest amount at the time she put the recovery on or lowest amount from then to say that well in theory it could be from then till today but again will have to gets you to the two hundred dollars plus number that's right i believe that's what you know what the district court at least implicitly found implicitly because no one made these arguments  you're right your honor exactly i mean not to neal was never raised as again i think that's what we started a moment ago that that creates an exception if you will to the general rules of restitution what happens when you commingle and how you trace and in that case the exception was because under those unique facts as i was starting to say you had the issue the funding question had been segregated had then been dissipated and it was untraceable none of that was ever developed in the record here that issue was never even raised before the district court so there is no record and there's no basis on which to for the district court to have argued or concluded or or your priest seen the notion that you get up to the mountain your back pattern would be argued and i said question is this put you in a slightly awkward positions so if you don't want to answer it but it's gilchrist still right after justice thomas said under this court's precedent whether the remedy plaintive seeks is legal or equitable depends on two factors st the basis for the plaintiff's claim and to the nature of the underlying remedies and then monsoonal addressed that yes ok and do you have a case for that you don't know or no i don't have a case to cite you at this time but i agree that the so remedy that ford has available to it is an ac equity for recovery of pension funds that were overpaid ok you can go ahead i'm sorry ok i didn't argue montana iow st of all because i didn't know about it and when we argued for the district court but secondly hundred number of cases held for the proposition that you you must have a specific fund from which you can get the money and that money must be in the possession of the  assets that are not traceable you know food whatever and assets that are traceable and surely if they are a or talks payment that's quite traceable correct but we never got that far in the district court that's supposed to bring all that up what i said is that all the money was dissipated all or most of the money was dissipated that's what i said before the district court ok but well maybe maybe this is just the definitional point one could forward she deposited into a number of different accounts that is just flatly not true and that was not disputed in the law in the lower court here tell us the truth tell us the truth the truth is that all of that money went and it  that held at the time about two hundred and sixty thousand dollars well just just i don't know that mister nelson misspoke i probably in the one misspoke i think everyone understood that it did go into that account and then payments were made from that account are we on the same page where you can't take money from a taxable account and deposit it into an ira you can't do that that's not per minute and i also want to indicate clearly that the ninety six thousand six hundred and ninety dollars that mister nelson has acknowledged was there at the end of two thousand and thirteen was the end of two thousand and thirteen she continued to make five hundred and twenty nine gifts to her grandchildren she continued to use the money for various other purposes so we've got this duration of time between two thousand and thirteen and the end may of two thousand and seventeen when she gets this letter that says you owe us two hundred and whatever it  is so what's your what if you don't think ninety is the right number where's the record up and inspire the right number we never we never went into that we never went into that what we said it's ok i got th ok all right there it was clear where said that she never raised any questions about the benefit commencement date my client never knew what benefits commencement date was utilized by ford when they calculate that the payment to her that was to be made never every single document in the record reflects a benefit commencement date of march of two thousand and nine and why why did she do  for a hardship when they invited her say well if you want to make the argument that it's going to be hard to pay just by my understanding is she didn't take it up on the that's correct for the reasons that we cited in the appeal forty two months went by before forward made a claim for return of this money and when i and after having deposed after oh sorry after having reviewed the documents it was my belief that she didn't owe the money because the play and now you can argue on the alternatives ready you can say we don't know the money but if we don't want the money we think it would only be fair if we paid back fifty thousand dollars or something given that she spent a lot of that for example well it was her position and after what she went through with ford for the six months and again the record the brecker document number of communications and compliance and discussions and conferences and all of that that were done she was she was flabbergasted that they would after forty two months come back and say you owe us two hundred and thirty eight thousand dollars and finally i just want to say mister nelson also indicated there was never any questions raised about the retroactive i'm out how when you were asked to have all the numbers we calculated that includes all the numbers recalculated and that answer is when we ask you to recalculate the numbers don't we have the right to assume that we're asking you to recalculate all the numbers for point ok unless you're an idiot last thing to say well i have lots of things to day so it's nice to have some people that know what they're doing and really appreciate your interest or questions and we'll try to work our way through it so case will be submitted