action company versus travellers parties as you know this case this appeal involves kind of two separate issues they both stem from the same root of garnishment but we have the interested parties everybody except for mr being carney arguing that the shares their joint tenancy account with the right of survivorship that their shares were improperly allowed to be garnished by travelers and then we have a separate ira account that mr carney is arguing so i'm going to start on the interested parties argument regarding the non ira account as your owners are aware there are six accounts at issue for the interested parties the st account the largest account that ends in fifty six dollars was worth six hundred and twenty five thousand dollars and mr carney and his wife mrs tonya carty argued at core in argued in separate proceedings that those funds were always health tenants by the entireties in the same report recommendation that were appealing today that was appealed recently and a ruling has come down so mrs carney tanya carney has all times argued that she own those funds actually one hundred percent as a t account holder but now obviously  found against her so she's making the argument that she has all the rights of a joint account with a joint tenant account with right of survivorship holding and i think it's important to go back to what was in front of judge mccown when the summary judgment motion was being argued at the time the interested parties filed motions to dissolve the writ and they filed a summary judgment motion as well and the argument by the interested parties was that mr carney had no interest in those accounts that he was a mere convenience signer and he said he had no no interest not even his joint tenancy with right of survivorship interest so in front of judge mccown and on summary judgment travelers argument was no mr carney does have an interest and they presented some former testimony deposition transcripts from the regions case showing that he had mentioned these accounts before so at no time did travelers make the argument that the other account holders the interested parties had did not have their share of the accounts they were trying to use to prove that mr carney did indeed have an ownership carney controlled and probably own most of it if not all of it but you didn't put the insurance company to test discovery and trial on the garnish money issue was based on the solely issue that being carney oh no part of it at all well your honor i think you're flipping the bird improperly i don't think the burden is on the interested parties to show that they have their pro rata share because they're a named party that account the burden is on travellers to come in and say despite the fact that a rd party is named on that account they don't have an actual interest in that account in fact mr carney is in exclusive control of that account that argument was not made that argument was not adopted by judge mccown would judge mccown fines he says look you know mr carney in the interest of parties try to say that mr carney has no interest in these accounts i don't buy that he does have an interest in these accounts judge mccown finds all the counts are joint tenancy accounts with rights of survivorship judg mccown does a beautiful citation of beal bank the conrad case everything else that lays out how florida treats a joint tenancy account with writer survivorship it is presumed presumed that the account holders have their interest and is presumed that it's they're entitled to their pro rata share it is up to the outside creditor as this court found in the dorman case to come in and disprove that position presumption overcome that presumption travelers never did that here totally agree with you are they for judge mccown in traveller's prove that mr carney had an interest in the accounts argue that we have a presumption that they have to overcome well they didn't even attempt to make the argument you are the one has the burden no emotion motion to dissolve and to show that there is an exemption from credit is on you under cain ok any i think your honor the presumption is the you have your entitle with what the interested parties were arguing is that mr carney doesn't have any injuries we've got one hundred thing we not firing because i don't think it was our argument to make your own or i think it was traveller's argument to make that we didn't even have the presumption under florida law that we at least had our pro rata share of the account section seventy  and some other case well st of all this is on summary judgment to begin with and nd of all your honor i disagree with the way you're interpret ing that case we filed a motion to dissolve we filed a motion for summary judgment saying mr carney wasn't an owner we never as far as we're concerned your honor i guess people weren't speaking past each other we never had any reason to think i or our pro ra interests are under attack nobody ever said we think we're entitled to take that entire fund the argument was does mr carney have any ownership of that fund that's what was in front of judge wasn't are we entitled to the presumption under florida law that we have our pro rata interest in those funds that was never raised in the pleadings that was never raised anywhere that's why when judge mccown came out with his report a recommendation that was adopted interested parties filed their motions to release the funds due to him because judge mccown found their joint tenancy accounts with right of survivorship he said all the law that is presumed to be equal presumed to be pro rata and he said no party overcame that presumption so the presumption under florida law is that the interested parties own their share they don't own one hundred percent of it we agree with that judge mccown found no been carney does have ownership in control of some of these accounts and some of these monies so the issue was is being carney zero or is being carney a joint tenant with the right or survivorship judge mccown found he was a joint tenet with right of survivorship and logically following that the interested parties are still there do still have a joint right a joint tenancy with the right of survivorship and that means they're entitled to their pro rata share was there any discussion about the effect of fighting at joint tenancy with writers right of apologize i'm not that skilled on the area i can come back i'll look at i looked at it for a very narrow issue i think the issue with the irate case is intent for a pledge a security agreement intent is one of the underlying issues did you intend to pledge this asset this asset this says that and with your retirement funds exempt funds the law is it should be liberally construed in favor of the debtor that it's public policy in florida to protect people's retirement funds a little become a charge at the state and then furthermore when a rd party to the contract attacks the contract the parole evidence rule doesn't apply you can't say to two parties to the contract because a rd party is coming in or no to cut the contracts clear on its face intent is always available to show what the contracting parties mean i believe that's me interrupt you first do you think that it's that it's your burden or the opposing parties burden to sadler's the exemption under the eye or a statute that were under the exemption i believe is presumed so i think it's the true it's the creditors burden to overcome that exemption and i think it's interesting the sawbuck in case you know the i r s was actually brought into that case and the i r s was under the belief that they did not pledge it and that's where the court found well they specifically pledged the shares supposed to be a specific pledge and to the extent there's any unclear anything unclear i don't think it's proper especially not in summary judgment to foreclose out the argument of what the intent of the parties was it well the district judge  did not say they took exactly the opposite both you and read took exactly the opposite position and when they were trying to establish the superiority of the mo that's what happened your honor like with so many moving parts here parties were had taken positions otherwise trying to protect their positions in case things got unraveled here so i don't think that's a fair characterization of mr re affidavit i think his original affidavit was like well we don't believe those funds are garnishable but if they are then we have a priority interest over travelers that's what mr reed was saying in the that judge mccown found was in it or in conflict with the other one and so i think that was a pretty unfair reading of those affidavits and wasn't the intent behind him no creditor wanted to be denied something that another creditor  so every creditor was saying well to the extent travellers can garnish that then we should get it st because we have a superior interest so i think everybody was hedging with all these moving parts so i think that was pretty unfair by judg intent in this situation cannot be of importance especially on a summary judgment standard when you have one contracting party against a rd party trying to explain what the intent behind the the agreement was especially change to another argument if they don't win on this one they change to another one leading to syria a dimwit a geisha a and the changing of factual positions yes we can as lawyers can make legal arguments in the alternative but the facts are the facts are the facts and it's either the truth or it's not the truth you don't get to have one affidavit one day that says it's mine when it's convenient and another to affidavit another day that says oh no i didn't mean that because i lost on the it's mine argument this is the th appeal arising out of this matter to come to the court it's the rd one you actually decide because carney dismissed one of one of the four appeals judge pryor actually sat on the pan on a claim of exemption it is the burden clearly under florida law on the party claiming the exemption to detail the basis for the exemption and to prove the exception it is not the  burden of the garnish sure she did that and the simple fact is if the interested parties had not filed the motion to dissolve in a claim of exemption the traveler is garnishment would have been found valid they don't file that most to dissolve within twenty day as i get judgement on my garnishment as a matter of law and us america can see the funds over to my client so it is their burden it's not my burden to prove i'm entitled to it it's to go garnish it and it's their burden under florida law to say i'm not entitled to it they made a strategic decision in the court below to argue that mr carney had zero interest in the funds so that all of the funds could be placed in the hands of his relatives and mind you these are not rd party disinterested people these are his role his relatives who he has used again and again to try to avoid this judgement in the appeal on the fraudulent transfer s appeal that your honors affirmed your honors recognize that he had used his son as basically a straw man to put in place a company to purchase a judgment to try to block travelers and you all you all affirm the district court over rule over ruling in overturning that whole transaction so this isn't the st time that mr carney has used his relatives to try to shield his assets we put on proof that is in the record it's six hundred and twenty eight which is appendix tab twenty eight and our supplemental pendants as well because the original appendix did not have all of our exhibits to d e six even though wasn't paid till two thousand and nine as for two thousand and six before he was even married he wasn't married till two thousand and nine on the other accounts we showed substantial activity him using want to count to write a five hundred thousand cents pay pay taxes with so these aren't small amounts a substantial use of these accounts i don't know how you can say he doesn't own at least fifty percent of an account if he's are more than fifty percent  actually control the entire account if he's writing five hundred thousand dollars checks from these accounts but to judge anderson's point we did put on this evidence but to judge anderson's point the issue was never raised that there was a fifty percent  interest held by the interested parties in the way on it and i think he's correct on this that with respect to if you if you didn't have this garnishment framework and you would just dealing with the joint account there is that presumption and and probably you are not he would have that burden is that not true yes i agree with you one hundred percent if it was not a garnish but there is a separate procedure and a separate burden on a garnishment and the florida legislature has chosen to put in place it's a very specific and detailed procedure for sending out notices of the garnishment for filing for filing motions to dissolve for having hearings very very detailed procedure and that detailed procedure means something and part of that detailed procedure is that you bring all your arguments at once and then you put the garnish garnish me who doesn't know what exemptions they're claiming on notice of what exemptions they're claiming so we know what to try so we don't end up here where they want seriatim trials again and again and again and again and at some point there needs to be some finality at some point it needs to be you were supposed to when the statute clearly sides are supposed to bring all of your arguments in this motion to dissolve within twenty days of the notice of the garnishment and you didn't do it and they've had ample time to do it and what they really want us to go back and have another trial where we have already put in significant evidence in the record that these funds were actually substantially at least mr carney has to go try it again and come here again this case has already been going on since two thousand and nine we've had the judgments since two thousand and eleven and this is our th appeal because of these seriatim arguments and again the purpose of the i think the garnishment statues is to have a quick determination on the validity of the now they chose not to raise the issue that that's really on them if i could your honour's turn to the ira account i think one thing's very critical on the ira account that distinguishes this from your normal guy who walks into a bank takes out a loan signs a blanket u c c probably doesn't read it in that in this particular instance mr carney provided a u c c to his son's company a company that this court has already found that he used to conduct a different fraudulent transaction by trying to create security interests in assignments and priorities that did not exist to put his relatives really him ahead of travelers and fact moose is controlled by james reed who was always  mr carney's right hand man helps him run the construction companies and provides business and he was a former attorney i know he doesn't provide legal assistance in them anymore but he was a former attorney so they set up these transactions and they they issued a broad u c c to most and when it served to mr kearney's interests to argue that hey i pledged everything to miss travelers you're garnishment you get account so mrs clearly unconditionally through being kearney's right hand man claiming that ms had an assignment being carney claimed that miss had an assignment of the i r i that was had priority over travelers only when they realized that that the u c c did not have priority over travelers so they suddenly claim oh no it we never intended for the u c c to cover the ira the just record doesn't need to have a trial and listen to them give two different stories and order to make a determination that they have already admitted that the u c c covered the ira wins party does that mean there's a clear case law from this court as well when parties have conflicting testimony and affidavits it can be disregarded there is no reason to have a trial on intent they've already admitted their true went to hand and the judge had to write the magistrate had a right and reviewing  the summary judgment and motion to dissolve playthings to make that determination that it was intended to cover the are right without a trial based on prior judicial admissions sworn testimony filed into the re if you're on our swear word i happen to find that there was some issue of fact that couldn't be resolved on summary judgment of course it would go back one more e mail and also we have an argument that was  only were all over the ira the district court found that there was issues of fact on this so again that would go back for an additional trial an evidentiary hearing are you familiar with and or a year in case   thank you anderson excuse me going back to the interested parties case but i guess again i'll be repeating myself both tanya carney from day one claimed those  interested parties other than tony kearney claimed they owned one hundred percent of the phones judge mccown had a hearing on that judge mccown found no you don't own one hundred percent of the funds and then he writes report and recommendation where he says the accounts are joint tenancy accounts with the right of survivorship presumed to be equal and a creditor can garnish that debtors pro rata share nowhere to the judgment can say anything else no where does he say not only do the interested parties not own one hundred percent they own zero percent travelers the objections to the  that's not their argument big that's presumed unless someone else comes in wipes that presumption away and then judge mccown in his report recommendation to tell you the effect of that the effect of your not making that argument is that  the other side did not have to prove how much of it was being car news if you'd made that argument then the burden of proof would have been on but you didn't put it at issue and i says that the garnishment is triad on the issues that you raise in the motion to dissolve it i guess my question be then what was judge mccown writing because when i read that he finds that those accounts are joint that the parties are presumed to have their program to share unless the creditor proves otherwise so if there are three people on the account each on thirty three percent if there are two people on the count the june fifty percent under florida law unless there's proof otherwise in judgment count says that in his report recommendation and travelers never appealed it never challenged it i don't think it was our burden to presume that judge mccown didn't know what he was writing i think that was traveller