view the issues it really comes down to very two points and two points only because we're dealing with a matter of statutory interpretation specifically of the new york insurance law thirty two zero five  two under that statute as it existed at the time which has been since modified but that's not relevant here anybody can take out on the life insurance policy on their life and make the beneficiary they want what the previous law prohibited was that if your if you the insured are not the one who takes out the policy or to use the word of the statute for cure or  in a stranger that is somebody who's not does not have any particular connection to the insured if that stranger takes out a policy and the beneficiary is period would go to the estate that's what this case is really all about counsel i want to before we get to the legal question i'm just wondering as i recall this case the appeal is from the motion for reconsideration is that if i write about that well i don't think it's it's that's true because that was the last motion that was filed that's what led to the sky every but willie what happened here is that a summary judgment was issued before there was any discovery and then the reconsideration was granted but then the summary judgment was granted so the the substance of this appeal has to do with the summary judgment well let me let me ask you this let me just tell you how i'm kind of viewing the case and i want you to be able to respond and tell me why this legal reason that was given on summary judgment but also there's the reason that you know what the parties are just trying to rehash everything or most everything that they said at the summary judgment phase the discovery really didn't do anything for us  so therefore i'm going to deny it on both of these grounds and if that's true then we could affirm on the ground that this was just a rehash of what happened at summary judgment and not even have to reach the legal question because we have cases in the circuit that say if all you're trying to do is rehash what happened on the merits then we don't have to we don't have to you know have to reenter tain those arguments why it's not a rehash and let me explain why ok the judge's view of this case was entirely based upon the cramer decision entirely based upon what we believe was a misapprehension of cramer and the law the court looked at the basic facts of the case and said nancy berkman knew what she was doing she's the one who initiated the picture of the policy and therefore s p v as the purchasers entitled to the proceeds period what the judge never considered never considered that all was it was the fact that cramer has nothing to do with this case because in kramer there is no dispute that the attorney the insured obtain the policy and the issue there was assignment there was no dispute about that what the lower court judge in our case failed to consider from beginning through the end was that unlike kramer there was a substantial question whether nancy bergman as you should interpret statute actually procured or initiated the painting of the policy so the discovery of course meant nothing because the judge never changed his view that cramer and this case were on all fours so whether you look at this is a motion for reconsideration that's on appeal or the granting of the motion for summary judgment whether you look at your obligation on the summary judgment to review it de novo or you look for motion reconsideration with its manifest injustice i submit judge that where there is a clear error of law where a court clearly misapplied the presidential case that reversal is required under any standard on a l and i don't think it's necessary to get hung up on the procedural niceties not that and the meaning procedural nice and he's an appropriate case but here you have this really a purely a question of law  and whether the court miss but the court misapply cramer and cramer does not have presidential value under the undisputed facts of this case it has to go back because there are then there become issues to be tried whether or not for example the insured nancy bergman whether the fact that for example she consented she was part of the scheme let's assume all of that's true if all of that's true and kramer applies and b to doesn't apply then no policy for all practical purposes under b two would ever be out the window why because no matter who applies for insurance on one of your lies for example you're going to have to do something you're going to have to focused on part two of the analysis which is whether or not not when bergman had insurable interest then there was on the part one of the analysis because in part one the judge simply said this is just like  the raising this essentially for the first time going to appeal that's happened in many cases but its discretion on the part of the court and the fact is when you have a clear question of law and the trial court made a specific decision it's not as if the trial court wasn't aware of the issue because it cited primer and it relied heavily on cramer so while i personally agree that the trial counsel in this case could have emphasized that point more i don't think it would have had any effect on the court because the court below was convinced that cramer applied and i can understand why the court felt that way it's just my own review of the statute leads me to believe and be really convinced that unless you look at it from the standpoint of when a stranger attains a policy on the life of another you can you're always going to have the life of the other involved in the process because that's what's being insured and if you call that  policy he clearly had the ability to fund the policy and pay the premiums here you have a situation where the trust a paying the policy the trust was the owner from day one the assignment like in kramer was not in the issue because nancy bergman could never have gotten this policy on her own forget her age the age is relevant she would not be able to demonstrate the ability to pay the substantial premiums if you recall from the record your honour's there were five insurance policy see her forget about the fact well don't forget about a but there was a ten million dollar policy here but there were four other policies and there was a broker involved and it's not relevant here to get into the somewhat  shady characteristics of this whole transaction but the bottom line is this was not in the n c bergmann getting insurance on our life this was not nancy bergen is nisshin anything not going bergen met this broker in israel and then decided to be part of the scheme for some money and he went to his grandmother who we had very little relationship with he's not even named in our will and said how would you like to make a few bucks i can make a few bucks and all you gotta do is fill out some health forms and we'll take care of the rest she didn't even know any of the details she didn't know who the trust was she didn't know who the owners of the trust work she didn't know who was funding the trust is are these that are the facts that were develops after the motion for consideration was heard by the the district court and he allowed to dish will discover it was it during the additional discovery throughout the case but the judge in the judge's opinion just concluded that because she knew that the policy was being taken out the way it was because she consent that because she signed a proper forms that were required for her to sign that means she initiated or particular the policy and that's why i'm saying that if that's the case the month talks about precedent then this statute which is since been amended but this statute to the extent applies to other situations you would never have a situation that was violating the statute you wouldn't even need to go through the assignment the interesting thing about the whole assignment idea was that it required at least that require the insured to take out the policy and have you put in qualify for the policy and pay the premiums at least that was true so of course said well that's really not a wager that's a legitimate investment because the insured is actually the one initiating of preparing the policy he's financially able to pay the premiums that's not this situation insurer interest on the part of the party that purchases the the insurance when the that is that the question and the question that district court if if if if if a question related to that was presented wasn't that the question that the district court dealt with not not in our universe out whether nate c bergman whether there was some problem with nancy it applies kramer that nancy berkman is entitle to pick out the policy and make not insurable interest beneficiary under be one if you take out a policy on your own life you can make anyone in the world the beneficiary they don't have to have an insurable interest insurable interest issue only comes into play when a stranger obtains a policy on another's life the court found that she wasn't coerced she wasn't defrauded and she was of sound mind i don't object to any of those findings because that's not the issue so the whole interest issue while it was mentioned by the trial court was not the focus of the court's decision in the sense that i'm saying insurable interest is the focus once you have someone other than answer bergmann for cheering the policy then there's a fact question whether or not mint berkman as the initial beneficiary of the trust berkman and the trial court did talk about whether the fact that he was a grandson and so sort of presumed that he had insurable interest but the point is that if you can analyze this new york statute correctly in my judgment and you look at a don't ask about the sanctions which is the district court seem to just misread misapprehend what was going on here i think that the argument of of opposing counsel was that was essentially from s i don't remember the party s p v yes but the the argument was was it was essentially that look we relied on the metadata we've got them we don't even have a document examiner to look at this there's no mention of a document examiner and so the district court just got a fact wrong why should we send that back down and allow the district court to reconsider that if they just if the district or just plumb got that fact wrong well because s p v doesn't have any facts to establish that there was any wrongdoing in that regard you can't have a mr fawcett lee was the attorney he's not an expert he's saying oh i figured out from the meditator what happened here well the it's not evidence he would have to have an expert where they got off track is agreeing with you that there may have been some misapprehension between an expert and a document examiner may have been used loosely by the court in the parties or interchange but at the heart of this is there any evidence that mr kroll did anything wrong or unlawful and the court said no regard listen the court didn't say oh mr foss you don't have an expert the course simply said there is no there's no document ok thank you and that's only have two and a half minutes left so reserve my time thank you very much applied in new york law they ignored cramer they didn't address it substantively when we raised it and they lost cramer could not be more on point i'll talk about that in a minute but what they said after they lost was well wait there's an element of fact here that we didn't get to discuss and the judge said seems to me like you had plenty of opportunity to discuss that but since discovery is ongoing with respect to the trust i'm going to hold your motion in abeyance and i'm going to let you participate in the discovery and they went through discovery and they produced nothing to support their claim that there was a nefarious influence the record is overwhelming nancy birdmen was a sharp woman who understood she was buying insurance she asked her grandson who brought the plan to her what's in it for me and she got money fifty thousand dollars according to her grandson now counsel made a couple of statements here in an argument that i need to respond to he said nancy never applied for the policy that's flat wrong there are documents in the record she signed the application she went to health insurance examinations for the insurer she was interviewed by my client is part of the transfer of the policy she knew what she was doing as judge pierce all said she may not have been sophisticated but she knew what was going on and they turned this in as opposing counsel trying to make some distinction on the idea and his own initiative to cure or effect contract is that different than simply signing the contract what he has said in the brief and now said in oral argument is this is different than kramer because in kramer mr kramer arthur kramer was the one who came up with the idea again flat wrong at page nine thirty five thirty seven and nine forty three ne second the court says that the investor approached arthur with the idea the investor as here funded the policy again council's representation as to what kramer says is wrong and you can check it then the court says if i might just finish at page five forty one of nine ne second the notion of obtaining insurance and the details of the insurance contract need not spring exclusively from the mind of the end were rather the insurance decision must be free from the furious influence or coersion contrary to the sense view the initiative requirement without more does not prohibit insured from obtaining a policy pursuant to in poor sort of arrangement with an investor they don't have any facts for their  influence so on appeal they walk back from that one their first argument was new york law doesn't apply they wast they have no abandon that on reconsideration they said we're going to give you have an insignia farias influence they have one page in their brief with no record sites where they talk about it now they have new arguments the new arguments are unclean hands that she didn't really love them and again those were raised just strong as to your point it would be perfectly within your power and the record in this case for you to say look the only issue you brought up is the denial of the reconsideration motion and that there's no manifest injustice there was no abuse of discretion and we're going to affirm that ground alone yeah i wanted to follow up on that i think i misspoke earlier when i said rehash i actually meant new arguments i think judge kelly after i laid yet new hash there you go but the point the point is i think you'd they would say well all we did was go on you know the choice of law and that's why we filed summary judgment and alas the district court when decided everything and so we're coming back now are saying geez we were surprised by this and you see some of this in their preferred now we've got to do what we really wanted to do on summary judgment now we've got to do it on a motion for reconsideration what's a response to that you don't get a do over because you made the wrong argument we were very clear in our motion papers and we wrote the summary judgment motion new york law applies here the elements of cramer and cramer couldn't be more on point if you read the certified question in cramer it is exactly the question that's presented here and the answer is is equally clear what they can't do is as they have done throughout this case come up with new arguments after they lose this case has in unbelievable history of litigation in the eastern district of new york southern district the central district of california where my client has had to chase down the truth and has had to wade through all sorts of obstacles to get there and that brings me to the question issue to stress you got it exactly right they say in their brief while the judge thought you know there was going to be a document examiner report and there wasn't one and so they lose absolutely wrong judge pierce all worked hard on this case he put up with a lot of stuff but he simply got it wrong when he talked about document examiner and it's not that mr fawcett is an expert what happened is that attorney cr represented the estate was actually hired by jacob herbst who was one of the investors in the trust there's an e mail we got it cited in the brief where crawl sends a letter to sim or an email the sim bergman the r of the state he says her crawl contacted me and said you need a lawyer i'm going to represent you here's a retainer agreement well that should set off a red flag because their whole argument really is that the nefarious influence these bad trust investors are the ones who caused the problem here they're the ones that are funding the estates litigation and what's absolutely astounding your honor is if you go to page eight of her brief and i've got scribbles on mine but we've got the retainer agreement that was produced in two different forms as it was originally produced by mr croll it listed the client it said the gross recovery means the total amounts received in connection with the action by the client the client was defined as the estate that's the one that covers it the magistrate judge in the central district of california when we subpoenaed proles files made him sit in her courtroom for a deposition and then said i'm going to make you get a he discovery vendor and that a discovery vendor is going to produce the metadata off your computer and we're going to see what's going on at that time kroll produces this revised retainer agreement it's got a different set of clients and it's got the estate recovery going to cool speed which is what we've been claiming all along that the nefarious the bad guys that they say are running this lawsuit are actually i'm sorry the bad guys that were behind this scheme are actually running the lawsuit and that's not mr foss is opinion that's from a spreadsheet of met data that we've it's in the appendix and it has signed a retainer agreement deep created july twenty twenty five sixteen it's produced july twenty second twenty in the one that's produced is the the altered one that's the evidence in this case that's for the district court then to determine and remained right we can determine it we have to say you got a fact wrong and you need to take another look without that fact the you exactly exactly and we're confident that we will make that showing but you know i understand the deferential standard of review and sanctions and i think it's not an argument that i would bring but for the fact that judge pierce all said in context he said yes there were a lot of discovery issues and yes there were lots of orders to compel that yes there was a lot of litigation but on balance i'm going to find that the lawyers didn't intentionally do anything wrong he said it would be a different thing however if there was actually a forged document but i'm not going to have a trial over whether that is because there are disputed document examiners etc he was just wrong he just missed that fact and i think with respect to the saying you need to reverse you need to send it back and say look at that again judge pierce all because these are serious allegations you know i mean this is this is beyond kind of the normal well they didn't completely give us all the discovery that they produce forty eight documents and said these are there's a full set of the documents responsive to your discovery and when we got ahold of the computer compelled by the magistrate judge in california there were two thousand documents that should have been produced another seven hundred listed on the privilege of law if they're going to be any sanctions under rule twenty six for incomplete discovery responses that that ought to justify it and if that's on balance in the judge's discretion he's still not quite there if he goes back and he realizes there actually was a forged document that balance will be tipped forgive my lack of expertise in metadata and analyzing at and help me understand exactly what he had done to him when you were tom you saying that it and i understand that in the bennett data you can get additional information that you wouldn't otherwise get but what did the the exhibit to crawl's february seventh to twenty seventeen declaration document for sixty nine which is in i believe employees appendix eight seventy one to seventy six  which is what we call the redacted agreement and he had in front of him as exhibit thirty to the fos affidavit the what we call that full agreement and then which has the modified the language that was excised and then he had the spread sheet which was exhibit four to the faucet affidavit which showed document number eight  retainer fully executed to client and it carries out of the next line date created seven twenty twenty sixteen although it's dated august twenty six twenty fifteen  said was i didn't get a report from a document examiner and you're saying you don't need a document examiner to read this type of metadata because of the other documents you had to write at a bare minimum the judge was looking at the wrong thing and you should send it back and say look at that again this should be sufficient if the judge has a question we can deal with it but what's absolutely clear is he was wrong on why he did what he did and when you bases a decision on sanctions based on a leave you with this the new york allows what it called a life settlement transactions life settlement companies like my client are licensed by the state of new york and so in new york there's a thriving industry where someone has a life insurance policy and they want cash so they sell it up until shortly after this transaction it didn't matter if the life insurance policy was procured in the first instance with a clear intent to immediately transfer it to someone else that's what the crema case was about and cramer said look there are lots of other jurisdictions that say as a matter of public policy we're going to call these wagering contracts we're not going to allow them and what the new york court of appeals the highest court in new york said is this is ok according to our legislature and we're going to allow it to stand the plan doesn't have to originate with the insured it can originate with an investor that's a specific statement coming out of cramer case the trust the original beneficiary and cramer was for his children the original beneficiary here was for naaman bergman nancy bergman's grandson the contestability period elapsed before my client got involved that's key because under the caruso case in new york once the two year contestability period lapses no one can go back and challenge the fact that well there was fraud in the procurement of this policy or that it was a wagering policy that's different in new jersey and in lots of other states you can continue to maintain a challenge to the issuance of the policy that's why transamerica didn't contest this policy you know if anybody could say well you're really committed fraud on us because nancy didn't know what was going on that was transamerica they had that claim they didn't make my client didn't do anything to procure this policy my client is a business that is in the business of settling life insurance policies and it made the purchase the fraud it claims was that it was lied to in the transfer there were misrepresentations about nancy's health she was healthier than  we were told and we were told the premiums had all been paid and they weren't so michael and initially wanted to get out of the deal so give us your money back we're walking away and the trust fought that when ultimately we bought the policy out of an auction when the trust defaulted so this whole notion that my client somehow did something underhanded or wrong is just unsupported but that's true of almost every argument you hear today if you listen to what they say and then go back and look at the record you'll see it isn't so this oral argument was a prime example of that nancy bergman signed the policy application arthur kramer was not the one who came up with the idea and the the you know we got a document that clearly was altered so based on that with all respect to judge pierce so you should reverse and remand of the sanctions issue you should affirm the summary judgment decision you should either do it because it's just right on the arguments that they made or converse will you can say well the only appeal they took was from the order tonight and the reconsideration and you know that's not an this is the estate that has her son sim bergman as the personal representative anybody know facts relating to how nancy dealt with all of this it would be him but he says we need discovery what does this discovery show all medical records show she's a shark lady that she knows what she's doing discovery shows she wanted to know what was in it for her she wanted to do something for her grandson she wanted cash herself which she got so you know if you look at all of it there's still nothing there five hundred eighty pages we put in they don't cite a fact in their brief about the nefarious influence it's not much more clear than that so you've got several paths to affirm the merits decision and i think appropriately should reverse and on that just clarify you're not you're not continuing that the the merits is not before this court on appeal  there's court says that when you're reviewing a reconsideration you can go back and look at the merits issue ok but if you look at what they did to oppose the summary judgment motion you've got to affirm and then if you say well all the other stuff they want to throw up against the wall not only wasn't properly done because reconsideration is not an opportunity to raise factual or legal issues you put a raise before but didn't but it's just wrong to cancel your two minutes and thirty eight say yes obviously make a quick briefly most of the argument i just heard from mr magnusson is responding to an argument that i haven't made i'm not here to do anything other than to express to this court as i believe i did in our priest what i think the key issue in the cases i'm not running away from the fact that i disagree without trial counsel present of the issues it could have been presented better could have presented clear but the an application how did she sign it as neat and sure who signed it is non or not common bergmann the insured always has to sign the application is the insured because it has an authorization to obtain information such as their medical records the fact is mr magnus neither mr magnusson nor the brief sub s p p nor below have ever confronted the fact that unlike kramer nancy bergman did not particular this policy mr cramer was the owner of the policy nancy bergman was not the statutes very clear in order to procure it's not just a matter of signing a form you have to be the owner that's the whole point because when you're the owner it's an investment not a wager if you're not the owner it's a wager not an investment and that's what's been missed in the lower court that's what's missed by s p v they don't want to confront that issue because when you read cramer and you read those old cases from really one thousand nine hundred seventy to do with assignment what didn't happen here there was no was silent there didn't have to be an assignment because nancy bergman never owned the policy and therefore never had to assign it number two we're not claiming nefarious influence i understand what was claimed polo but i'm not claiming that here we're not claiming is not a grandson what we're saying is that if you agree that kramer doesn't apply any grae with my position as to the clear words of the statute you have to send this back to explore th material factual issue which is whether or not my burgman head in the church the interest that would have to be tried not the fairest influence not whether nancy bergman was was a was or was not a willing participant of course she was a willing participant she thought she'd get money she had a condo to pay off no question about it that's not the issue the issue the fact issue for trial is whether or not  is whether kramer applies to this case and most of my colleague mr madison's opposing argument simply says of course kramer's on paul force of course it is of course it is no of course it isn't and reason it isn't is mr kramer a sophisticated lawyer thought this policy his policy i never argued that it was nancy bergman's idea to get the policy of course it wasn't her idea that's not the point