i would like to take ten minutes and then i think the starting off point here in my argument is that we have to accept the fact that there was a fraudulent transfer i don't think there's any question of that i mean one thing that's puzzled me and there's probably an easy answer but i haven't found it is that based on your objection the i'll just read from the decision during the second bankruptcy case the bankruptcy court became or the transfer of a car were properly the fact the transfer occurred during the first  facing resulting dismissal neff agreed to record a quit claim deed transferring the lake harbor property back to himself there after filed an amended us off a reporting both the initial and subsequent transfers so it went back to him at that point so what's the issue that's left well if i can just go back one step ok he didn't agree he was ordered to do was a written order from happening but it says it that it was transferred back to him whether he liked it or not if it was transferred back i'm not i don't understand why there's a problem about it being held for some period of time by somebody else well it's a fraudulent transfer i don't think the code makes a distinction between whether or not he was caught and then voluntarily did it back because had he not been caught well then he might have gotten away with some bankruptcy fraud so i think that if the assets back in the estate then the creditors can claim against the asset are we looking for something beyond that well you know seven twenty seven actually i think so i think he has not played fair with the bankruptcy rules he's played fast and loose he's tried to transfer an asset and got caught but there's more than that he didn't pending he was still contending the transfer was affective in essence but i take it that we're not talking about the availability of that asset for the creditors we're talking about extracting something else from him because he tried to do something and filing and then there was a second bankruptcy a second chapter thirteen and then there was the chapter seven which is what's now it is you that's correct that the transfer occurred during the pendency the first bankruptcy in fact it was the day that he was supposed to be it is three forty one a meeting of creditors so they're not legit anything that he did anything in the current bankruptcy action as a right i believe that this continued into this action because he did not relent the position that it was in the retirement trust the did he make a fraudulent transfer during this third bankruptcy proceeding i would take the position that it was still not on w title had been transferred title had not been transferred he restricted a deed it was not a grant deed it was a quit claim deed and that deed he wrote in his own handwriting he wrote except that debtor contends that this is still part of the retirement trust so he wanted the did the bankruptcy court treat that asset as part of the estate available to creditors well that point hasn't been decided yet to do had been no distribution of the bankruptcy assets it has been sold and it's in a trust account with the trustee i don't think any creditor has made a claim or been paid any monies out of this so as the trustee control that asset yes so presume i mean there's no reason to think that that asset won't be available to creditors it's not like the trust to be handing it back and say ok we don't care about this asset any more simming there's value there you know there's value when it's been liquidated i don't know what the status of the claims will be in the future and what the court the bankruptcy court will decide but the asset ha been liquidated and it's part of the estate it's been looked at it is yes it has this cash in the estate for yes it is that something that you have a claim against i do i do in fact i arrived at as a partial settlement of my claim with the trustee and that matter also went up on appeal with the backup and has been sent back for some different orders three men for some different orders with the bankruptcy court that are pending so what is  hope to extract from this proceeding well i i believe i was prevented from going forward and proving the fraud and i believe i have a right to do that i was prevented by much more fundamental what is it that would happen as a result of this which would be beneficial to you and other creditors all right well for example with myself i have a fairly large judgment over three hundred thousand dollars for medical malpractise and that would be paid entirely there's enough assets for me from a well point a minute if from what they get if how does the estate get larger as a result of this proceeding if in fact the asset has already been liquidated not assets held by the trustee how does it get bigger you know that's back you would be able to continue pursuing the claim after the bankruptcy that's correct or i don't know how in this case because it's been liquidated and it's on an account with the trustee what the procedure would be don't want all that but my judgment would be deemed not destroyed but that fact if my seven twenty seven action were to be successful if i were to go back and be able to try that action now the creditors will be back on keep all the creditors could pursue what whatever creditors would be able to pursue him and in so i guess the question is would would that be helpful how with epi helpful to you as you would be competing i guess with the rest of the creditors for his salary or whatever it was well that good point better position and it still sounds like your chances of ever getting your money are slim and none and slim life town but at that's other than one you know i mean we're just sort of trying to look at this from a practical standpoint  you know what you know how with this benefit you well i am a secured judgment creditor no one else's so i would have priority i would be able to pursue his whatever assets he has unsecured claim in the bankruptcy and the bankruptcy is this is a liquidation so the bankruptcy estate is what it is and then how much of your claim is getting out of the estate i was awar ed a portion with respect to his homestead exemption he was denied a disability homestead the car court found that she didn't believe that he was disabled so he didn't get enhanced homestead which gave me roughly sixty thousand dollars of my three hundred thousand three hundred ten thousand are judgment which i have not solidified yet it went up on appeal which remand him for further findings i have about a minute left which i'd like to just go through quickly a couple of the almost if i can less if they were questions all right i think you have to conclude there's no question that it was a fraud in the transfer because he did it looking at the current chapter seven petition that's correct the issue is that for me whether he concealed it and i believe that he did in his sofa statement of financial affairs there's one question question number ten which says did you transfer any property within the last ten years into a trust he did not disclose that although he had made that transfer three months before a fall that petition although the property address is mentioned in his financial affairs and the fact that he used to own he didn't disclose the fact that he transferred it so one doesn't know that he also did not disclose the fact that he was the grant for the trustee and the beneficiary of this retirement trust he kept complete control of the property and did not disclose until he was ordered to take a two thousand four exam and then it came out that he never really cemented any possession of this property and it was all farce i have about four minutes i'd like to reserve following up with what appellant stated i think i need to clarify what we're talking about here this appeal is about a denial of a summary judgment of his seven twenty seven action to deny a discharge he based it on the fact that allegedly transferred property within a year prior to the filing of this chapter seven there is no doubt based upon the findings in the bankruptcy court and the undisputed record that that transfer did not occur within one year prior to this petition doesn't it just whether this is a statute of limitations or statute or repose what actually there are i disagree with that because when i get to my argument i'll jump to an answer question as it would seem if it if from that standpoint why should we follow the opinion in the district court for the northern district of texas and womble which held that section seven twenty seven eight to the statute of limitations and th findings which are looked at from clear error standpoint this court found on the record there was no concealment we just heard the appellant say that's his assertion that even though it's more than one year before the date of the filing of the petition because of  concealment that it then trails into some time period where it now falls within that one year that's not what the court found the court her all of arguments and made a finding which i don't believe the brief or the appellant has come close to showing is erroneous that there was no concealment because in fact in the second chapter thirteen where all this arose there was one chapter thirteen the never went forward he didn't file completed schedules because he was depressed elderly getting sick  then there's a second chapter thirteen that goes on for a year and a half and it's at the very inception of that chapter thirteen where he in his schedules as i put in my brief the bankruptcy court said she didn't like that and i'm paraphrasing a little not what he asserted he asserted it should still be considered a retirement asset and he lost on that and the properties and sold as has been properly parted on this part of the bankruptcy statements going to be distributed so the bottom line is that it was if you assume that mr nafs transfers of the lake harbor claim property may have been project lands was there anything that mr knows he could have done to object to the transfers prior to mr nafs filing of the chapter seven bankruptcy proceeding yes and he did he followed objection to his chapter thirty and was i misunderstood the court's question were you saying before the second chapter thirteen well  it's it just sort of seems like he's out at every turn here appellant or us and everyone else you know and it would seem like there was nothing he could have done anywhere well but if i may or and we're also trying to ascertain what any what good would any of that done for him but you know i didn't you know i realize you know he's a pro se but i didn't find your briefs particularly helpful to be honest and so i feel like we're kind of talking past each other because i think it is important whether it's a statute of limitations or a statute of repose oh i think that's something that can be argued however in this case is what i keep going back to the court already made a finding there was no concealment hence no equitable tolling hence it doesn't matter even if it is a statute of repose because of her findings there was no concealment and she states on the record her reasons for that which is that it was clearly listed in the chapter thirteen schedules it was listed in schedule and it was listed in schedule c the trust was listed with the address of the property and it was listed in the statement of financial affairs so the bankruptcy court found there was no concealment without concealment be to th and while i'm looking your honour's may have pointed out that i don't see how the deed case doesn't give us a clear victory a give said without a doubt that for twenty third in the ninth circuit in i that is a circuit case it has to be transferred and remains transferred at the time filing and it goes back to the very same thing the court was talking about which is what's the practical result if it's been transferred out and brought back in so it's part of the bankruptcy estate there is no horror to the creditors there's nothing more they would have gotten over there what they got were gorbals of what happened in the water that's what i thought the case was about when i came in here it turns out it's about discharge and i understand that if if your client doesn't get discharge there may be additional assets that become available to creditors and putting appellant so that's what's at stake now why isn't his objections to discharge should be deemed to be too late now if you give me one argument about the district courts for the bankruptcy court findings and i'm waiting to hear where i can find that and that that may be the end of it but if  that doesn't end it then we go back to the question of whether whether discharge is still be on the table the pelleas appendix started throwing at page one twenty two your honor and going on for the next court making the finding that she does not see concealment well i'm reading page nine of your brief i don't see the word consumer anything that looks like it so what  should i be looking for that over the top of the page ok wait a minute room going on the page can also refers to other findings and she actually references the fact that it wasn't concealed because in the second chapter thirteen which is what we're talking about i guess it was clearly disclosed numerous places throughout the schedules no schedule was perfect you can't give an entire written history of everything that's going on in the case you're supposed to answer the questions and he disclose the property disclose the trustee disposes assertions so i go back your i'm down to six minutes i go back to the fact that i start from the end which is if the court finds there's no concealment which appellant just told you there's this whole theory of equitable tolling why are we pardon my expression spending this time over something that the bankruptcy court found and has not even appellant hasn't come close to disputing that and he may disagree with it he may not like it but that's a finding that has to be reviewed for clearer now purely fraudulent we disagree i have cited stern it is clearly appropriate and available to any debtor to do what's called pre bankruptcy exemption planning in fact stern says as a knew about there are two separate i don't think any equate to the same finding in the benghazi context are actually there are often looked at at the same time i agree they are technically different and could have different applications because it was not within one year he has the argument that it was somehow concealed which under the theory if it's a statue of limitations then drags it into with any year but then he still needs to overcome a deed that because it's back in the debtor's name listed in the final bankruptcy in the creditors and got the full use of it so what's the point that's exactly what it says when he going with the policy of the deed is leaving talk about the fact that debtors often do things  they're the the property was transferred arguably fraudulent way at the time even though it was later transferred back to the estate and then the statute the timeframe the one year before that the filing of the petition they considered whether that could be tolled or not under andrew young the supreme court's opinion young in that analysis and by one now that was the basis of the alice's it determined that there wasn't such a equitable tolling of the one year period perhaps a century you are you saying that that the apps reasoning was irrelevant that the baptists i had the wrong ground there should have been looking at whether there was concealment i guess i'm not understanding your argument here well you know what i did is say here's how the argument would go appelle would like to say it was not technically within a year but because of that people calling it technically they can be drawing within the year the bat found on different grounds that i'm arguing today other than the fact that i incorporated the ruling basically that they find on point it's a case for a person and i didn't answer the justices question so let me go back to that your are that your question was again i forget that my question was whether you were disagreeing with the app's analysis now that that was looking at transfers or there was a transferred some point in time that arguably was transferring the property of the debtor and improper way under seven twenty seven and then the debtor transferred it back and the apis and let's look at the moment of transfer and see whether there was equitable tolling up until the point of the chapters of the filing and determined that there was not that there was an equitable and distinguished young and relied on the fourth circuit case of pipe water and so the argument you're making now is about whether there was also continuing concealment is that what you're policy of ability to give it back to so that they are in compliance when they file because that's exactly what happened the deed he trasher then transferred it back before he filed and the nice work instead for it to be an  i was should use the term improper transfer within the one year it has to be transferred out of the debtors there and remain transfer into what is given back it almost becomes a moot point does your authors have any other questions for consume it was one of my arguments below but not the primary argument although i do believe there was concealment i think the justice hit it on the head fraud is fraud is fraud this is clearly a fraudulent transfer there wasn't concealment could there be fraud transfer was a fraud upon all the creditors at the time because the debtor was trying to secrete this asset and while he would tend complete control of it he tried to he get away with it and it did ultimately go back into the state but isn't that what the statute is supposed to prevent and the equity clearly says you know we're pitting the doctrine of a fresh start against someone who plays fast and loose with the bankruptcy rules and you conduct a fraudulent transfer and i may or may not in the seven twenty seven case but i never got a chance to try it and there were a lot of other factors there his attorney signed trust document that apparently circumstantial evidence is strong he showed was back dated the deed wasn't recorded for two years after was allegedly signed there were a lot of other factors to indicate this was a fraudulent transfer but i never had the chance to put that evidence on the debtor claims that it was simply an attempt to take a non exempt asset and transfer it into an exempt asset by putting in a retirement trust and there's a he cites the stern case for that that's pre partition what he did was post petition so he could have transferred it into something else before he followed petition i don't know if there's some rules about that doing that before bankruptcy too but clearly this is not that situation he had no right to transfer this property i was thrown in from filing at seven twenty seven i his bankruptcy attorney who was guiding a debtor who he had a lot of problems he had drug problems he lost his license a lot of motivation to hide his property and only because he was caught so i i feel that th matter lies squarely on a statute of limitations issue and the judge said that judge kaufman if if it's an equitable tolling situation and i get a chance to put my case on if it's not then i guess i'm for clo i think based on my reading and i was never a federal court practitioner but the u s supreme court case of young versus the u s is controlling here i think they purposely want to for close this loophole and they said so  that's what the case is which felt that this was an equitable tolling statute followed young and i think this court should follow young as well young clearly had very similar facts similar enough that the legal principles involved  same young involved a situation where the debtor had filed to chapter thirteen pts and prevented a creditor from going forward with the seven twenty seven action and the supreme court young even said we're not even going to look at whether or not the debtor intended to do that the effect was that the credit which were closed and we want to close this loophole so i think young is controlling in this situation and i can get a chance to go back and prove my concealment case and my fraudulent transfer case i don't know what'll happen