but the standard song save title is the defining factor of cutscene troll as i said in my brief you could only an apartment house people could be making drugs you don't have custody and control this is a little bit closer relationship well i don't that's the something we are going to finish it we not only have a a business a business relationship but we have a marital relationship when you have an attorney client relationship well that's that's actually one of our biggest but well in the three facts that i just gave you that is that he had a commercial relationship they were husband and wife and she was also acting as an attorney your response we're response was that we don't want to go beyond the record i thought all of those things wreck knowledge there acknowledged but if the core your honour's going to add these together to make an additional finding a fan i don't think that that would be the function of this court and i actually don't think that those could be almost unconstitutional i don't think it's that logical that if you're married to someone i could use it the opposite way might not be politically correct well the wife maybe someone much less in control than somebody been you know who's got a business partner well because the husband often controls the relationship i don't think we can speculate on this and i don't think yes a very well may be true she's a lawyer she's married and they may jointly have encountered decide we're going to have sequester hider fight this property and defy the court but very well maybe not and now i will mention the standard is clear and convincing which is often described as  violated that those are the those are the elements what what's not clear and convincing about what she knew and what she did the other three sixty two is generally to keep creditors from collecting it's five forty two is the one that should be there and i've cited cases other cases don't state that if that was the case then there'd be no did never be an argument there would be three sixty two the trustee decides he he says he wants it he says it's consequential and you have no argument you must turn it over that's three sixty two really is not this of political five forty two says is sort of a standing order this is you must turn it over and then the case is th deal with the specific facts we have here state you're not going to be held in tim if you didn't have custody if you couldn't comply or unfair to say you know you're in contempt of court ordered you could not convincing second ok let's let's take the first but the two elements are i'm now looking at our decision and i think this is not for yeah that's the that says that willful violation does not require a specific intent to violate the automatic stay rather the statute provides for damages upon two things a finding that the defendant knew of the automatic stay and the defendant's actions which violated the stay were intentional so if we start with that first element did the defendant know of the automatic stay there isn't any question here statue is i forty two we must turn over again i don't think it's anything in the state it's a real stretch to say that right but we're not not not in the five nation as i understand we're not under five forty two because the but the trustee apparently is not  addressing the bankruptcy courts power under one o five we set up the elements we've listed it all there so one o five is a facilitating century that people jokingly say the bankruptcy judge can do whatever counsel except that we've underlying specific statute that gives the judge the power to that doesn't have to be specific delineated to enforce another statute if it was just used without what i just said it would be just  i did quote this was arguable whether the c d s were negatives will value my client had a right to argue about that it turns out they were the trustee had a great disinterest later the other houses were post petition or at least it was an argument there so for days there in front of judge donovan he could have very well said you're defying my order five or turn it over tomorrow but we'll keep litigating but he did not do that just might the question that has not an i think sometime in april now prior to the filing of the contempt proceedings was the property in fact turned over because the record seems to be silent and it does appear to be talking about what they did prior to march noddy to mr your asst offering to to have them come and get them get the c d s and there's repeated letters from her and i don't know if she responded or not i don't see that in the record what i do see in the record is her offer to have the say say too much but yes i think it's in my favor but nevertheless i don't want to go through the record is if we were a trial court and then the court decide things i think they decided the judge on decided that his findings of fact to some extent were limited he didn't get into he said the property belong to the estate that's clear and he went through some of the background did he ever say that there was clearly the ninety knew about the automatic stay clearly because they had gotten a letter to that effect from you but what about the intent to violate judge has all obviously found that there was a violation because you were the property be turned over but what about this concept of intent to violate people can violate something without having the intent to do it and judge and then he sort of talked about that he may have had some knowledge of this matter because he had been the bankruptcy judge that handled it before judge serves olan so he's just sort of saying based sort of on my knowledge over what's going on here plus george that included deposition testimony which wasn't relevant to the analysis of whether to turn up whether to order turn over a property and it was deposition testimony of frank mayer which acknowledged that if there were accounts receivables that were due and owing to the debtor that he had a duty to turn them over there was also evidence of when when for example there's a ten thousand five hundred dollars count receivable that was that was stolen canady and that letter clearly outlined the exact property the exact property that we need from the estate to turn over right which is essentially d v d s and the high value post production film equipment and that letter also war forced to file lawsuits for turn over so that i get to fight the property that they refused her over they they didn't bother respond that letter and the lawsuit was filed that was that was a key piece of evidence that so the intent to violate the over they made us follow a lawsuit does not automatically follow because you have the automatics day which is in general terms the automatic stay didn't say turn over the d v d right yourself that kind of stand but i'm saying that the automatic stay is different than many court orders where people are held in contempt where the judge says do x specifically and you don't do x then there's a contempt hearing you're held  contempt yes the thirty five forty two so that so that a bankruptcy judge always has to find that there was an intent to violate as opposed to just a violation correct that's correct because there's a difference between the two now judge donovan couldn't simply rely on judge serves all is fine is because judge george zola didn't find there was an intent he just said there was a violation turn  they were like you have a property you have to throw it into but he doesn't cite anything he just says based on the record and then and what we know specifically from the hearing he's constantly referring to judge personality which was not the same test or whatever you believe before jobs years old that was before that touched on and makes no reference to anything else specifically in his in his order and certainly during the hearing he doesn't say anything about what the deposition testimony this and that the other he doesn't say a thing about it he talks about the record well what record he talks of we don't forget oh sorry he was intimately familiar with this case because he was on it since two thousand  eleven seat isn't that a concern that you sort of relying on what you know about it a judge and not making specific findings to hold somebody in contempt say ok look i know about these guys there are bad apples and you know you don't have to  don't have to make any specific finals because i know it is not having to do that in this case actually you look at the papers that the trustee filed to look at the evidence and it was more than just that again the findings of fact it was the well that was that was part of the record that he considered and that was filed in the court so we have to assume that the judge the judge did reference the fact that he read all the papers because i believe there was a big deal made by the intel is counsel that they f includes all of the written material that that judge donovan acknowledged on the record that he read and consider opposite way if he did reading consider everything and judge for meters all also yes they did all that but and the trustees council may say any reasonable person would believe this or that but the in the rightness of their position how does the void go from those who want to know the courses they brought i think they should they should be separated  legally right as to cindy i think even if you're a lawyer and i sure you know a bankruptcy or an even even then you don't really understand said and as one of the justice read her advice was not that they're sitting there they're litigating yes it is part of my order they are litigating whether it's proper to say where there's consequential value and who would know that well the vote but wasn't there wasn't their responsibility to turn it over or at least disclose that they were holding this but we thought it was up in consequential value which is which is not required to be turned over but at least concede that they got it protection generated asset there was also transferred i might mention that the summary judgment was lost because my client didn't follow response in time so he never really got to bat or had his day in court and actual factual finding on any any of this so of will hadn't made findings sufficient to support this do we do it simply reverse the the order or do we reverse and remain and with instructions to do it over again well wishes i'd like to say the first part but it's more think add up that she had custody control and willfully defying the courts of course and we would like her to be reversed and dismissed our mayor mr merrett it seems i would have to be agrees with my favorite book the right standard well would have to be sent back on him and the judge to do it again with the right standard thank you thank you all for the argument of the cases submitted