the summary judgment filing because the trustee did not provide the court with any evidence which refuted the information in this wager next affidavit and so at least with respect to the cross motion and forty seven of the bankruptcy code requires that there be a transfer of an interest of the debtor in property that element is part of the trustees time aphasia case isn't something that the author needs to disprove it something the trustee needs to affirmatively demonstrate and in a determining that issue the th circuit adopted the dominion and control test as well as the dim diminution of the state test in the i'm afraid i can't answer what the th circuit meant in the decision it doesn't articulate both of those i think you'll find as i've argued that under either test there was not a transfer of an interest of property and in this particular context the question is simply whether the debtor had the ability to direct the distribution of the loan prose and specifically for marshall they say they say quote the debtors exercise of their ability to control the disposition of the loan proceeds is the essence of the case and in that case the payment capital once and b n a constituted a debtors discretionary use borrowed funds pay another debt here are the affidavit from ms wait wait connect is very clear she stated that the loan was not a general line of credit that her son could have used however  but in these kinds of cases don't we look at the ruling of the bankruptcy court and isn't that controlling that was not my understanding here are my understanding is that the review in this court is from the the next lower level court which would have been the bath i think not i didn't need to really appeal in other words to this court the issue of the admissibility of the affidavit because the of the affidavit because it wasn't my understanding that i needed to appeal an issue that i want money to go to my law firm he said yes i agree and i also wanted to go to this law firm i wouldn't give it to you for any other reason and he says good my control is that you think it's the law firm because that's what i want to s he has no control over it if his argument is i do have control my exercise of that control have a disco inside my mum or i think there's a difference between a request and control the affidavit stated that he asked his mother if he could borrow the money for the purposes paying the firm yes of i'll give you the loan and that's the only place i'm going to direct the money decline later and say you know i really don't pay the loss for arm i'd rather go out get myself a car doesn't have the ability to use the money however he wants the fact that the payment went as he originally requested is a completely different type of analysis and he doesn't therefore have the ability or the discretion to use the loan proceeds for any other purpose that he may desire the bankruptcy of state of resources which would otherwise have been used to satisfy the claims of creditors as marshall put it quote if the debtor transfers property that would not have been available for distribution to his creditors in a bankruptcy proceeding the policy behind give witness power is not implicated in here once again the affidavit provided that the loan was not a general on to the debtor and importantly that she would not have made the loan which was outside of the parole evidence rule says that she would not have made unless the funds were used exclusively to pay the firm all the note does is memorialize the debtor's agreement to repay the they printed out off of some website this is a transaction between a mother and her son where you would not expect the full details that maybe you might get if you went to a lawyer it's an intra family transaction and these were the considerations for why the parole evidence rule on the nature and scope and the purpose of the loan didn't apply to preclude miss way connect from telling the court what what the true transaction was between her and her son from the mother directly to the law for that is correct the i was a david all the proceeds never touch the state directly or the correctly is directly is that correct that is also correct judge in the affidavit makes it also clear that the debtor had no is read yeah but you don't really need the affidavit the law firm is in the record and in the appendix what you do need the affidavit to say however it does say this is that the debtor did not also have some interest in this specific account upon which the check was written  it is that it is done i'm sorry it goes to the other aspect of the case that you're not pursuing at this point it also goes to this issue about this that you think about that but the debtor never touched these funds it was never in his possession it was never in the estate and the important point from the argument on the diminishing of the estate is it never would have been in the estate because no money would have been available to other creditors here because the mother wouldn't have made the loan unless the money went to the law firm and that is what is significant your point really is even if it were in the estate even if there was  strong box of lock would you please on your way home tonight drop this lockbox off at your friend's house without something in there i want you to deliver to for me to your friend the lawyer if the facts are that way i think that correct but i think it has been easier here because it never even flow through to the son it went directly from mom to the law firm and it wouldn't have even gone there there would've been any money or other agreement to repay money there's no distributing money to you just you write the check to the law firm and i'm agreeing to repay you and if the demand whenever whenever you ask for that money back i'll pay you back but it didn't give the debtor pression over how that money could be used and that's the essence of marshall and that's the essence of the argument here under the control theory thank you i just briscoe asked about and maybe because you felt it as well about what order is being reviewed here i didn't cite anything in the briefs because i think it's pretty common knowledge that the review of a taken the position that he's not raising and earmarking argument which makes no sense because because the only distinction between the fact that he's alleging and the fact in the marshall case is this control strictly speaking what he was arguing was not a earmarking situation but rather a pure case of control of the munition and the marshal well i that's a terrible way of viewing the argument my response to that would be the judge ramiro addressed that by saying that i mean a control diminished of the state are not separable concepts from your market they're part and parcel of that analysis which is not you know in the in the explicit language of section five hundred and forty seven and those are just those are two concepts that are used in analyzing your work so i don't but maybe if i may let me pause a hypothetical be is a daughter who is married to a lawyer in a law firm that has been representing and so a goes to the mother and says this is going to be create a terrible in trafalgar situation if we end up hurting the child be relationship with her husband because we're just going to leave this law firm high and dry for helping so the mother says i will lend you money but only on the condition that we pay the law firm i think close to the situation the judge you built was part isn't it so the mother agrees to loan it's a but for situation the money never would have gone there but for the fact that the mother gave it to the firm not to the child ok so so so in addition to what i just said i would also say that as i think was found in marshall if there is a if there is a documented promissory note with an obligation to repay from the debtor there has to be an instant had which have which the state has the right to this money and it lost it so there is a diminishing considering this diminution element so i would i would ask the courts to apply the same here i also would say that that if you if you look at the rationale in moses uncursed that that the equitable purpose argument it's almost inconceivable that somebody who was borrowing money in his obligating themself to repay that amount through alone does not have some interest in the proper in the loan proceeds and so we w did you pay any creditor more than six hundred dollars in the ninety days before the bankruptcy and he said yes i did and then he explains that the pain was made by his mother for his benefit so i would submit that as the bat found even if you do consider the affidavit there ar this case talked about that that that if it was in the bath about that that if it was a gift it's a different scenario because then you have a stronger argument that there was no that the debtor had no interest in the property here because you have i mean there's a loan i mean and and i mean i mean it's kind of defies logic in my is listed as a creditor she's a creditor of the bankruptcy estate because of this loan if she's a creditor and the debtor borrowed money how could he in any conceivable sense of the definition of the word interest and property not have an interest in the loan proceeds with it of the test is that these are to some extent these are judicial fictions created to to achieve a result they're not in the bankruptcy code and there's no reason for them to be added when here there is no then having to share in the minimal chapter seven distribution this is judge briscoe again do we have to look at either dominion and control or diminution of a stake then are they both legal was then the mere fact that there the existence of this loan agreement i would submit is sufficient to show an interest in property so you would have to look at either if you are going to look at those i would also to answer the question that you asked earlier as to whether if the court is going to apply the marking doctrine analysis which to my opponent is not asked to do element one of that test is control i mean to the extent that the court does say this is that argument was preserved on appeal and we're going to consider it then i think you do have to consider control and was there control here i mean we're getting back to the issue of the nanosecond whether or not the once the lo document the note was executed was there a nanosecond of control by the debtor i would say the nano nd rule applies to the diminishing argument not to control and i would i would go back to your observations earlier reviewed if i may if i'm wrong about that not that i'm familiar with but if the review is of the bankruptcy courts order the issue of the parole evidence was raised by the in the reply brief that was further expanded obviously  issue on the counsel stated that the mom arms here because she loaned this money and now has to share in a minimal distribution if you look at paragraph eleven of her affidavit she actually it was  every other creditor in this case gets a larger percentage of distribution because the law firm was paid and ms wage an act released her client those are the two points with respect to the issue of the debtor asking for the loan and somehow that constituting control in marshall it was a line of credit to debtors that money out they could have taken that money out bought a car bought a house did whatever they wanted to with it but they used an exercise their discretion which was key in the pence or get opinion they actually are size their discretion to pay em b n a in this case the debtor had no such discretion even though you asked his mom for the loan for that purpose it's not as though he controls that money in any fashion in any sense not for a nanosecond and simply because there is a promissory note that memorializes his obligation to repay does not give thousand and sixteen thank you thank you thank you both for your arguments this morning this case is submitted we will share in this case and wait for our next case