called deal seed and warehouse against rose and m m r is the next case for argument fraudulent transfer claim settle it collect on the settlement and then refile it all over years years later we have the same parties the same claims t lawsuits and two recoveries so the opponents respectfully request that the district court's order be reversed under either the doctrines of are included in that list and what so does that inclusion prevent you from argue that they cannot be reached now no your honor to answer your question not all of the property in if i'm understanding the question correctly is the question was was all the property that is being so sought to be set aside all of those transfers were they included in the pre bankruptcy transfers yes yeah another words yeah i mean and this is clear in the record which assets were transferred prior to the settlement in  that there may be an issue of whether or not they were transferred post bankruptcy there and we've conceded two of the three in our in our brief to the court right right that the two land transfers one occurred in tw itself however remand may be appropriate in that instance because if you look at the twenty four thousand federal asset report at least half of the two million dollars of property itemized in their work was put into service in tw the property as we look beyond may twentieth eleven it's really unclear as to whether there was any equity in that property and whether or not matt rose paid anything of reasonably equivalent value in exchange therefore i think the record is very murky on this issue as we've noted in our brief it appears that counsel for cattle seed is asking matt rose whether or not there was reasonably equivalent value given back yes your honor and we are getting our brief that the burden is on the plaintiff in this case canell and we believe they have not met their burden with regard to the farm equipment so we've asked for claims and a final judgment on the merits with regard to the claims as we've already discussed cottle concedes and the district court found that with the exception of two land transfers and the farm equipment all of the other transfers occurred pre bankruptcy that's a total of two hundred seventy two acres and in the pre bankruptcy fraudulent transfer action caught it all was a co plaintiff with the trust not that the trustee came in and kicked out and said no you can't pursue these claims they were a coquina in the final amended complaint and counts four and five of that complaint seek to set aside two hundred seventy two acres a specifically referred to as the somerville properties and importantly it says any and all pre bankruptcy transfers the trustee did not abandon any of these assets cottle argues in its brief that there might be seem to be one of the happened what happened to that claim i gather it was settled now usually a settlement is accompanied by a release did either the trustee or chordal seed release m m r the bankruptcy court found that they're there the parties were released that i'm in here although that's not what the bankruptcy court found and one doesn't find something about a release one either introduces a release or not i went looking for the release it turns out that m m r released the trustee and not the other way around there was a release but it was by m m r and without a release by the trustee how can the settlement and this claim well in your honor when i was referring to was was the tw thirteen ruling from the bankruptcy court where the note there's either release where there isn't the bankruptcy judge said that there was a release and that turns out to be correct it was released by  caudle seed of m m r well your honor and i did and i did notice in the record that when the trustee final question can be answered yes or no no your honor ok and i did notice in the record your honor that representative of course but there was no judicial decision and there was no release so what precludes bringing the same claim again when you get a settlement when a it can be brought again unless there is a release and you have now agreed that neither the trustee in nor cordell seed released m m r well i don't know you should have negotiated for that as part of the you didn't get it and that that seems to be you know pretty much that well your honor i don't think there's a way to release document that was necessarily attached to the motion to settle a compromise claims but this court and other circuits have said that an order approving a bankruptcy rule ninety one thousand final judgment is race judicata against other creditors so in the motion the truck the trustee asked for released makes mention of an attached exhibit which appears to be the release the bankruptcy court enters in order approving the motion to approve settlement and under ninety nine the thing that was approved was of settlement that did not include a release do you have any legal authority for the proposition that a settlement but does not include a release by the party who then susie again binds that party well i think it comes down t know that too can be answered yes or no if the answer is no you can explain why you think the absence of authority is not dispositive but is there any authority i'd look for it didn't find any your honor i did i didn't come across  same parties where i think your honour's getting at is whether there's a final judgment on the merits where you can't have issued preclusion because that requires an actual resolution by the court of some issue necessary to the resolution of the case and no issue is resolved by the court so the question is whether settlement without a release produces claim preclusion and that's why i'm looking for authority and the absence of any seems to me telling your honor on the point of issue preclusion i do think that there was a necessary finding at the bankruptcy court there was no finding by the bankruptcy court necessary or otherwise i mean that this is pretty basic black letter motion there and there was a motion to reconsider after the court had already denied discharge under seven twenty seven and in the order on the motion to reconsider the bankruptcy court said that the debtor did not there was no evidence or not sufficient a fraudulent transfer claim so we have a bankruptcy court saying back in two thousand and thirteen that mark rose there is not sufficient evidence that more pros intended to hinder delay or defraud his creditors and that same exact issue is being being litigated right now so i would argue that on that basis that there is issue pollution and with regard to claim for pollution the final judgment on the merits came when the bankruptcy court approved the bankruptcy ru  the defendant entered into with the trustee and the court overruled the the objection approve the settlement and then the plaintiffs come and try and sue the defendants on the same exact theories as the trustee and the court said that there's race judicata you can't relate a gate those claims because the trustee steps into the shoes of all the other creditors in this court on the same in re melwood and we cite the american whitman case court good morning my name's scott for and i represent the apple we call seed warehouse company this case is not as complicated as the italians are trying to make it it's really rather simple conall seed is attempting to collect a debt against assets that were fraudulently transferred but still controlled by the debtor marcie rose mark rose has struggled furiously seed was was proceeding on a twenty eleven judgment and in the present case in the cases before the court connell seat was proceeding on a post bankruptcy judgment a judgment  that was obtained as a result of mr rose breach of the reaffirmation agreement and so i think we're talking about two separate claims here two separate cases  the most important point i'd like to to point out is that mr rose mark rose continued to maintain control over this farming operation and its cash flow and mr rose what he's attempting to law and federal bankruptcy law in a ruling that coddles see it could execute against certain specified asked assets and notably it was not disputed at in the lower court court that mr ro transferred these assets without consideration and or he retained control over these assets and so that the district court properly held that conall see has standing and could it could enforce its twenty fifteen judgment against these assets these assets that were currently controlled by the debtor more pierrot's considering oh really the assets that were  whether there's equity there are other priorities leaving holders and some of the assets that were transferred so we never got to the stage of determining the existence of equity in and how much scott l c would be entitled to if it if it case cited by the appellants contemplates the fact pattern that that we have here where the assets remained under the debtors control following the bankruptcy that the bankruptcy trustee settlement agreement settlement agreement simply does not produce the inflated legal effect that's argued by the appellants it cannot be interpreted as the bankruptcy courts official sanction of mr rose's transfers a non fraudulent it can't be interpreted as a final judgment on the merits and this settlement agreement cannot be interpreted as as blanket immunity for mark rose's legal trance transgressions whether they be past present or in the future appellants claim preclusion issue preclusion arguments simply must fail because they're not a political to the to the case first of all the claim preclusion argument it's debatable whether or not this was a percentage presented to the lower court it has been presented on appeal and so i did address cited in our brief but there is no identity of the cause of action and that's the first element that must be met again karl seed in the bankruptcy action in the first action they were pursuing a twenty eleven judgment and in the end we know we were allowed to go to trial on the issue of whether mark de rose was entitle to a discharge under the bankruptcy code seven twenty seven eight the case before the lower court we proceeded on a twenty fifteen judgment and our cause of action was based upon indiana state law the fraudulent transfer law claim preclusion also doesn't apply because there was no final judgment on the merits the trustees agreements with mark rose is not a fraudulently transferred assets these judges realized the bankruptcy code could not be used as the appellant's intended here it could not be used as a shield against fraudulent activity so i would ask this panel briefly i'd just like to address the alter ego argument that was raised by the phillies the catholic with the cash withdrawals that they reference in their motion to avoid they even say were a lot of they're not seeking to claw those back and they again were all bankruptcy or for the most part pre bankruptcy transfers and that the trustee said in the bankruptcy case that despite a year's worth of investigating cottle has still yet to find any direct or circumstantial evidence of fraud and then i want to close just by considering some general public policy and equity arguments one of the primary ways this court knows that trustees bring assets back into a states is is is to bring these fraudulent transfer claims and then rely upon hopefully expeditious settlement so that they're not spending all the estates resources but again these claims and after this case of the district court's decision is allowed to stand that sort of begs the question why would anyone ever settle with the bankruptcy trustee going forward because these settlements can be ripped apart years later and it ignores the fact that m m r m m r and har has paid nearly two million dollars since two thousand and nine on these real estate transactions and has continued to pay on these real estate contracts so at a minimum if they are going to be set aside m m r farms and mr rose should receive credit for the payment on those installments and in the us the panel has any further questions i would just ask that the district court's order be reversed thank you very much counsel of the case is taken under much current and the court will take a five minute recess before calling the fourth case