is of the four bases upon which the bankruptcy court refused to honor these liens one was when was it if when was the assignment affected and candidly on that is the one that troubles us effective do you agree that the evidence is conflicting no we do not there is no evidence that was accepted by the bankruptcy court and in fact no evidence of a february or all assignment and i will say there's a there's a side issue of whether march fifteen or sixteen is a controlling date because of when the already was issued but that needn't detain us because the bankruptcy court essentially said that doesn't matter it's a tend bankruptcy laws really state it's that's the issue of state law and i gather is there a dispute among the sides about what whether that's true knows the key is a factual question not a legal if the assignment became was prior to the judgement fortunate i had an argument for the ninth circuit a couple of months ago so i remember a few of the room the issue was first briefed in the context of whether certain funds could be used to pay the accounting firm for the bankruptcy state and we objected to it on the basis of orleans the matter was briefed and the question of whether the lien said it or attach prior to  after march sixteenth was given very short shrift in that initial brief briefing because they they argued well certainly it happened prior to april thirteen which was the latest of the of a fifth lien that really isn't relevant here and we said no what happened in march that was the briefing we then got the it opinion of judge albert on the original motion which raised the issue of whether the assignment it happened before or after march sixteenth and his written opinion on that the fourth discusses the written assignment and says it was signed on or about numbers you gave us a precise date march fifteenth and your honour's may recall that's the date by e mail that was transmitted by in house counsel to mr harkins well let me let me ask you since your time is short assuming for the moment and i know you're contesting that that you've got the burden to demonstrate priority can you point me to w mr hockey had the written sign was march fifteen was e mailed to judge albert has said was a tempest in a teapot whether it was fifteen or sixteen for the origin of our all rap mean so that means it wasn't signed on march fifteenth or sixteenth we have the deposition testimony of mr martin's and we cited it in our briefs where mr martin says it was he has asked you dated this august one of two thousand and twelve but it was signed sometime after march and that's the question asked of him and he says correct so the deposition testimony which was before the court of the person who drafted the assignment document and who was not around month later when it was finally signed says it was in march or after march rather and that's why the district court maybe it was the bankruptcy court i forget which set the the record is murky because the former in house coun that well potentially it was signed after march but maybe it was signed before march i don't really know when the assignment occurred now you know and so given that ambiguity make this case then turns on who's got the burden of proof there's a judge albert never said it was signed prior to march fifteenth what he said was there was an argument for an oral assignment in february and that's one candidate then he says and then there's the mid march and he never says when in that march that he favors as a candidate but he never finds that and then he says and then there's the date of a problem which we had at one point argued when that was relevant but receive we never have a finding from judge albert as to exactly when this occurred and that in fact as well marred by procedure he's a bankruptcy judge what does he have to be specific if he put if he was correct in placing the burden on you and the record is unclear could he just say well the record is really unclear you you bear the burden and so therefore you haven't shown me that the assignment occurred after the lien became effective and so there's no indication that you're entitled to priority for this case and the reason i went on a very quick as to how this came up was it wasn't briefed initially and the whole issue came up in the context of a motion to reconsider and judge albert did not determine this on who had the burden of proof he said well i initially ruled against you in that movie he did not say want to stun he just he actually says at the end of that first order that the record isn't clear on pinpointing the date but even if the record isn't clear the brewer group loses for other reasons some judgment albert never determined anything about that lien actually he had three other reasons why we lost and he said so i don't have to make a finding on when this occurred to me ask you about one of those other reasons one of the reasons were that pacific mercantile bank called the senior  do we need if we accept the proposition that the bankruptcy judge was right that their leaving was sr and that it would exhaust the fons then do we need to decide any of the rest of the to a third party and then there's been a determination of how much money is owed to the third party so that's all the money that gets carved out how could it leave any money over there there was still a million there was only eight hundred thousand dollars left owed to pacific marked out by a million dollars were released for payment that eight hundred thousand dollars in these around numbers was credited against what was owed to pacific mercantile because that's a carve up and they can give away somebody else's money they can only carve out their money back i would see it hundred only eight hundred was owed to pacific mercantile because of prior payments on that cell and how much money was there total there was a million dollars authorized to be paid to the receiver to the trustees account was million available so why wouldn't pacific working tools interest plus the carve out for the accountants interest more than that still remain unsatisfied carve out that they've both got all the money the carve out is credited against pacific mercantile debt they say we have a lien in this you can take x number of dollars and that's credited against what is owed us and they were only owed eight hundred thousand dollars at the time the million dollars was released to the accounts so after the hundred dollars is eight hundred thousand is credited those the accountants wind up getting all their money and pacific mercantile gets no money because  exceeded the amount they were owed after being credited after the payment was credited to the carve out two hundred thousand dollars was paid to the accountants which they were entitled to judge so what the fight is about here is that two hundred what with respect to the pm be with respect to when was the assignment effected and the reason that's most important to us is because that's for all of the property of the estate as opposed this discrete fun d if we lost one pm be we'd still have our lien clean and that's why we have focused on that one question of when did it happen judge albert specifically found that it did not occur in february in fact he expressed some skepticism about that rhys's that's not really your view is it he did not find in his first ruling that there was an oral assignment because that was argued to on his second ruling on the motion to reconsider he refused to make any additional findings other than that rule fifty nine had not been met there were no other factual findings so there's never a finding that there was an oral assignment in february so all we're left with is march and the testimony is that that was created on march fifteenth given to mr harkey it was a tempest in a teapot as to whether it was signed or not on march fifteenth mr martin says it was signed after i left sometime in march or after march after i left and you want i'd like to reserve the rest of my time the issue of of when did the assignment occur is important because obviously if the assignment took place before the lien there was nothing for the lien to attach to because the property of the debtor was no longer property of the debtor that's the issue here who has the burden of proof when that assignment was made the burden is on the appellant here because the because the appellant has to prove under section three sixty three p to the extent interest in property of the estate has the burden of proof on the validity priority and extent of that lien as part of that burden you have to prove not only that you have the lien but also what property it attaches to and so that's where the issue of the assignment comes up because if the assignment took place which is the back up there was a summary judgment order of the bankruptcy court in twenty fourteen in late tw as as my opponent stated he testified that he was asked in february mid february of two thousand and twelve by mr harvey to go ahead and prepare assignment documents and that on march fifteenth he actually provided the draft to mr harkey he then says i don't know when it was signed i wasn't involved in that he specifically said i don't want to i don't want to testify it  us the assignment papers yes so the assignment papers he delivered them to the person who had to execute the assignment on about the same date the lien attached  has given which is an exhibit his deposition transcript where where he says yes that's that's the email where i transmitted the draft and it happened on march fifteenth so you would be entitled to win if the evidence definitively established that harkey signed the same day and the appellant would be entitled to win if the evidence definitively established that they were signed at least later in the day on the next day i don't think that that's true and here's why california law is pretty clear and we've cited the the amalgamated case which says pretty clearly  lawyer i want to assign property to the third party but and and a few days later his lawyer gives him papers to sign and a few days after that yes and or gets around the signing the papers in front of a notary nevertheless california treats the assignment as having been made when he told his lawyer what he wanted to do i think in this particular case that would be one possible conclusion that you could reach and sound  usual formality here was was really irrelevant i mean really what he was trying to do with formality and i could see where that might go to whether the writing was sufficient whether it was properly he's nor would want to reserve his right to change his mind so he actually signed his name if you look at this in context what mr harkey was looking to do was to engage in judgment avoidance activities right right the issue is when he executed the document or when he at least intended to make the fraudulent transfer correct and  saying that he succeeded in making the fraudulent grants for what he thought about it and directed his lawyer to prepare the papers for i'm saying that that would be one plausible conclusion that you can draw from and what you have before you that's enough for the bankruptcy judge to say yes i find as a matter of fact that he did indeed assign the money when he decided he wanted to effectuate a fraudulent transfer and told  prepare the papers that we don't need to know when there's it's correct when when when the appellant states that the bankruptcy judge did not in fact find that the transfer took place when he had this conversation in his mind about i would like to go ahead but the damon this problem transfer you need is the date of the conversation might be sure but what the bankruptcy judge concluded and you really have to take a step back with the bankruptcy judge concluded was that it is likely that by the time the liens attached the property was already gone that was the conclusion and that is the finding that this court is now reviewing not a specific date he specific he repeatedly said i don't need to find especially after problem with the specificity and that the bankruptcy judge were to say well there's evidence for january two and there's evidence for february three in evidence from march for but i don't need to decide which it is because they're all before march fifteen that would make perfect sense as supporting the finding but i'm having more trouble when we say he has to have signed or he doesn't have to have signed anything so long as he told his lawyer before the liens attached that he wanted to know what the district court concluded and i understand that the district court's order is not really relevant for purposes of this review but what the district court concluded was look on this record we have multiple plausible dates it could be march sixteenth it could be march fifteenth it could be mid february and on a clear error standard overdue i'm sorry how could it be mid february well that's that's mr martin the in house lawyer he testified in mid february he was the papers well that goes to the that goes to the sort of oral assignment right if if if there had been a third person involved here and if it wasn't harkey transferring from one of his pockets to another it would be a lot easier it would be a lot logical i'm still thinking about first your property were in order to transfer real to union fathman by picking up a clod of earth and giving it to the grantee and this is the opposite extreme this is well it's not real estate all i have to do is think about it that's right personal property could be transferred orally and given if mr harkey wants to have a conversation with ordinarily but it's to be signed sealed and delivered so you're saying the delivery of called well let me back up there's the amalgamated case which we cited in our briefs that goes to that's the state's california law in general about what's required for an assignment to be effective in california and it says clearly that all you need is to manifest an intention to transfer to transfer property by the us ignored ok have to manifest an intention to anyone like maybe your wife at home or do you have to manifest an intention to the s n e well i think here it's it's the same it's it would be the same conclusion right because he's that that's different from the hassoun or telling his wife or his lawyer i want to assign one hundred thousand dollars to the s n e i think what you have here is if let's pretend for a moment that mr harkey was actually assigning something to someone else ok what you would have here is mr harkey telling this hypothetical person i'm going to transfer this property to and then same day going to lawyer and saying please document this assignment obviously you don't have that conversation what you're saying is affectively he did tell the ass and that's exactly right another of his own companies that's exactly right and so that my problem with that rationale is he's proposing a fraudulent transfer here he might think twice before he signs the paper doing it well i'm not sure about that because i think that you know by the time this this came up when we were in the bankruptcy court litigating the issue of the fraudulent transfer and really this this all came up in two thousand and sixteen in july twenty sixth seen two years after we had already obtained a judgment of voiding this particular simons as a fraudulent transfer mr h defense in that adversary proceeding in the fraudulent transfer proceeding was i made this transfer in good faith because i was trying to protect the money that point center was holding for the benefit of third parties he thought what he was doing was a great thing and so i think when you when you place it in that context while i understand your point about well he might think twice about committing this fraudulent transfer he was looking at it as doing a good deed of course the bankruptcy court rejected going to yes his creditors hands when it seemed fair to him to write well the bankruptcy court rejected that difference and concluded that yes of course this was a fraudulent transfer regardless of whether you thought it was a good thing because you know it just occurred to me if in fact though the law really required a written document then it wouldn't be a tempest in a teapot whether the judgment lands were the fifteenth or the sixteenth of march that would become critical the bankruptcy court obviously didn't think so because he must not have thought it required a written assignment well that's right i mean when we brought up the issue of look at it might have it might have even happened in february when he instructed the lawyer to go ahead and memorialize this this this transfer the judge said well really i mean you're really can you really saying that mr hardy had this conversation with himself we said we don't know it's possible obviously when he told his lawyer to go ahead and do it that was pretty strong evidence that he had wanted to do it we didn't see any evidence that the draft was any different from the executed version in fact i think it was identical  but the point was that the bankruptcy judge concluded that it was likely that by the time the leno touched the property was gone and the record that the appellant submitted to the bankruptcy court not only not only does not conflict with a conclusion it actively supports it because of what mr martin described about when he was asked to to address the assignment and when he actually transmitted it to mr har and so you know on this on this record there cannot be clear air because you have multiple plausible conclusions that you can draw and the law pretty clear the case in the circuit makes it pretty clear that if you've got multiple plausible conclusions that you can that you can deduce from the evidence there cannot be clear error it hardly must a first to fi didn't that somebody depose harkey and ask him when he signed the simon papers no what he what he did was he actually submitted declarations in opposition to various motions that we had filed in the case and  these documents is in the record what he actually said was oh i submit i actually effectuated these assignments in two thousand and eleven in another declaration that he filed in another case which the what he actually did and i apologize i don't have the reference but it's an exhibit d it's an exhibit d to one of his declarations he had filed a declaration where he said see exhibit d which is right he didn't say incorporated by reference but he did say here is a c exhibit d exhibit d was the document where he says i did it in two thousand and eleven and what did the bankruptcy judge say about twenty eleven so the bankruptcy judge didn't actually address any of this because the first time that it came up was in the motion for reconsideration and what the bankruptcy court did and he didn't go into specifics he said you haven't convinced me that my finding which was again that the assignment likely predat the lien you haven't convinced me not a fraudulent transfer you've got what appears to be a lying or tricky declaration declaration that's true but incorporates by reference a lie  in the bankruptcy judge into nothing about that no because all it would have done was further support the conclusion that the judge had already reached prior to the motion for reconsideration so he didn't find it necessary he said look in that nothing you've presented to me alters my oral statement the on the motion to reconsider whether what you're concerned about is with you have liens you have them the question then turn to whether this particular pot of money was subject to those liens and their affirmative defense was that it had already left so it was presented in the context of an affirmative defense and the proponent of an affirmative defense has the burden of establishing that from jurors earning an interest in this property yes  biographical makes it pretty clear that the burden of proof is on the party asserting an interest in the property and the judge found that indeed we've satisfied the burden of proving that we have liens then we turn to the question of was this property still property of the estate what was the effect of that assignment there the burden should have shifted back to them and in fact in the case of the side of this car who oversees title insurance it is as a california state case forty two cal second to wait for they say the burden of proving an assignment falls upon the party asserting rights that are under and here that was the trustee because he was saying because of that assignment the properties gone and you therefore don't have liens mr harkless test there was no evidence before the court for february and in fact the court rejected february certainly in its first ruling it never said february because that was an argue to it in the second ruling he said i'm just making rule fifty nine findings if mr harkey had already effectuated the assignment why did he bother going ahead and finalizing the documents and in fact in his declaration which we did smith and we signed our opening brief and he said i did this sometime in summer or or spring or summer especially may so all of the evidence before the court was that this and happened back after march the bankruptcy they argue that spring or summer yes spring in southern california and then his last go and he's a southern california boy so he's here already yes or so but he also says summer and then he specifically mentioned it may so there's no evidence the bankruptcy court rejected who are you signing spring or summer something sometime thereafter but it was dated august so we have that lack of testimony we do have mr martin's hast found that the assignment occurred in mid march that was a finding they requested they were judicially a stock from now saying oh actually it happened in february they got summary judgment based on arguing occurred in mid march no specific date so they cannot now are you february once you get to mid march as the only date there is no evidence that would support a finding of march fifteen or sixteen and by the tempest in a teapot comment judge roberts essentially repudiated that and so there is no evidence that would support a finding that the assignment occurred before arlene's attached and then the argument then would be critical who bears the burden i think it