were dismissed by the by the bankruptcy court or voluntarily to the smiths by the trustee who was already talking about claims against fox yes so we know so let's look at let's look at w understand that we know that in the record so what do we have here all to establish that in fact he should receive or he's entitled to bankruptcy when in fact he didn't turn over all sorts of consideration in determining whether or the debtors actions were justified under the circumstances and i am but i understand your only other defenses is that the trustee had the obligation to provide the records or do do the have the obligation to make them make the analysis and find records and there's a bridge there's no authority for that well debtor's our financial condition or business transactions it is the trustees burden to demonstrate that it was impossible for her she determined there ascertain the debtor to ascertain the others the others with you before and one why is that though because you know the the decision that was made is that it was impossible and the m possibility of it was based your client failing to provide the records based upon the fact he was a trained accountant he was also a lawyer he didn't practice law that much he was a very successful businessman for a substantial period of time and that in there were a number of businesses that he owned and that far from which he obtained assets and she felt or of the trustee found the note was a pound that there was no basis for his not having those records he just kept saying i think you have to look somewhere else the devore had been retired and had not had an operating business for approximately twenty years before the had these the stocks family trust he had i mean he had a schwab accounting why are there no records of those things those whether he's running a business or not if he's asking to have debts discharged he needs to have some evidence of what is going on with his financial situation and i just don't understand how how it st of all how he didn't have the records the nd to how it didn't make it impossible once he didn't well with respect to many of the records he might otherwise have had with connection with the hema never provided mr foote even if we put aside the i mean the cayman documents are a huge part of what's missing but there are a lot of other things missing too i mean your client doesn't even have tax returns well i believe that there was only one he had cognitive dysfunction he may have he's got a son taking care of his son is apparently through it auction bought some of these assets and i think one of the biggest problems that the trustee had was this era vocal trust called bear business and and he used to own that so it wasn't just it wasn't just a former you know he no longer been in the business for twenty years there are a number of other assets that were not accounted for in papers he just kept saying i don't have them you turned over three hundred or three thousand documents and they were in an order she went through them she couldn't make anything out of them well actually he turned over possibly four thousand pages of documents but more importantly the trustee alleges in her own complained that his former attorneys the buckhalter fo liabilities his estate planning activities and potential assets your clients obligation to get though that was his lawyers to provide them and establish the basis for his impossibility  why you know if those records were relevant to every one of his assets well as a practical six matter he at this point in time didn't even really know what was in the called reform but it really goes back to another point that your your are made of a moment ago and then it is it's obligation to turn over documents as opposed to the trustee getting them from elsewhere suggesting that the trustee was obligated to undertake her own search anywhere and everywhere for documents but when documents are provided to the trustee by a  nothing there that would indicate that he was no longer getting income there was a number of things that he couldn't answer yes that's correct and his position was and there's also the the source documents from former attorneys he turned over with every if if the documents your are is referring to were not there frankly they were not there but he turned over everything he had and more  save any time for rebuttal you're basically out of time so i'll give you a minute but i think we have better save the rest debtor has in affirmative obligation to not only preserve documents but to keep documents in the th circuit has been very clear keep means keep as in a diary if there are transactions if there are business dealings that don't generate documents  debtors affirmative duty to create documents so that should they final bankruptcy all parties an interest the trustee the united states trustee and all creditors can track these transactions go back to the root of assets or prospect of assets that can be monetized or marshal by a trustee for the collective benefit of the unsecured creditors we don't have that here today the issue and i think fundamentally is if we look at it from what is required in a rule fifty six a motion was put forth a detailed eighty some undisputed facts of those eighty facts only six of them were disputed and really it was semantics if you will on the dispute we have he is not as he is not a sophisticated debtor as your honour's have already said he's a c p a he's an attorney he's an eminently successful businessman and that's the debtors will not have any more i guess at one point in time he was i believe the issue here is when you look at the of information again we speak to him possibility in possibility to prove it is almost like proving the nonexistence of something how do you prove a possibility when you can throw out a hypothetical that might show that something is going to be there how can you can you distinguish that can evolve or that can of king the decision made by the court which the where the now is circuit said that it was impossible to turn over the record or there is no need to distinguish anything one only needs to look at the facts of this case and i say that because when we have a whole categories of documents that there is nothing produced it is categorically impossible to track the financial dealings and ascertain where assets may be within that category of documents number one a the way the trustee is viewed this is the lack of tax returns is almost the anchor to everything we have twenty million one hundred and twelve thousand and twelve taxes that show passive income from top twenty some odd entities  bear biz and various income expense interest expenses that are being claimed meaning there are loans being taken out on income producing properties as of two thousand and twelve after two thousand and twelve going forward and i dispute coun representation that there's only one missing tax year to the contrary there has not been a tax return filed since two thousand and twelve bankruptcy was filed september th two thousand and fifteen so in the virtual two years leading up to petition absolute void of information of what is bids yes the trustee received a copy of the bear biz trust from another source besides that heter the trustee also received fourteen assignments were assets s p e single purpose entities that held real property were put into this trust by the debtor we received those assignments but there is no asset list attached to this trust document there are no bank records no k ones that were claimed on taxes so when you look at the fact that we received the trust document i think it's an overstatement to say that we got the bare biz documents far from it and i think when when that is looked at and and your honour's were to to assess the complete void of information here that is the very basis seven and seventy three now turning next to you once the trustee ory a creditor has a stablished its case the burden then shifts to a debtor to state why these records were not kept and to me that's that's the big issue we have a i'll call it an anemic declaration that goes through the the bad facts involving mr cayman and as iran has already pointed out the documents generated by the cayman related are but one category of missing documents there is nothing in the declaration that says why their biz documents were kept really going into why tax returns weren't filed except for it was inconvenient and i was  old and i think councils acknowledge that aging it of itself or infirmities that don't go to mental faculties aren't necessarily a defense here and as the bankruptcy court the trial court pointed out we don't have a the dog ate my homework we don't have a my house burned down and i lost the records we have no explanation justifying the debtors failure to keep or maintain records and lesser owners have any questions i believe and on th poor couple points in ours it wasn't you can't slough off the cayman documents they take in the cayman documents were clearly related to the bulk of any claimed that he was defrauded because of the claims that were made against him by creditors where the documents he has no documents that's a point w are are those documents the cayman trustee who happens to be a law partner of this trustee had all the cayman presumably had all the cayman documents i understand your arms position about it not being incumbent on the trustee to go out and find documents but we're really talking about walking down the hall and finding out what the cayman trustee to try this trustees law part or what he has and indeed i  suspect i do more than suspect that most of those documents who would be related to the s p ease because he had no other business for approximately twenty years after he had retired other than