good morning your honour's morning please the court i'm julie a fallen speedy representing the appellant william please and i'd like to reserve two minutes for rebuttal needless to say this is a very disturbing case and when i first took it on i had no idea that i would have the role of sherlock holmes and it's completely fortuitous that i managed to discover all these things that the trustee knew all along about this case but conceal from the court obviously the issue here is whether the l l c or the bank account had to be listed on schedule b as personal property and i believe that this case can be resolved as a matter of law and i'm going to walk you through that based on one sentence in the bankruptcy code and the documents that were never presented to the courts follow the sentence in the bankruptcy it is eleven u s c five forty one a one which states that the bankruptcy estate consists of the debtors legal and equitable enters in property at the commencement of the bankruptcy and in places case this is april twenty third two thousand and twelve this is the only property that must be listed on schedule b which is titled personal property now we can eliminate right well there's a line of credit loan agreement that all get and isn't he the only one that took the money out yes wasn't he the one that get the money out he was the op no i think that the owner could also take the money out and the owner was of the l l c so if you look at it that way and see that however sin is the true owner and has complete control in the thirty five pages that is not a basis to deny any discharge as a matter of law because it's not a failure to list that l l c on schedule b now how does the trustee get around this problem in this court she says well i'm going to refine my argument to  legal issue on appeal is whether police intended to defraud his creditors by omitting his exclusive use of a bank account in the name of the l l c on schedule b now if you look at the ownership documents that the trustee had they're pretty clear on what happened here they make very clear what police's real relationship to the bank account is and the first is the line of credit loan agreement which consider that document on appeal for the first time that's not a properly judicially this will be well i think that if you you know unfortunately here we've got a situation where police is attorney had a conflict of interest and really didn't bring any of this to the attention of either the bankruptcy court or the district court and i think that you can date judicial notice because all of these things are a matter of public record and if you don't there's really an inherent injustice here that i think when you look at what these documents are and what they say they fully resolved this case weren't they available gallon at the time of the well you know heart proceedings absolutely and that was one of my problems when i took on this case i couldn't figure out why didn't he bring this these documents forward because he's the one that had  gave them to the trustee and so he knew what was in them just as well as the trustee did and that was my problem in the early stages of this case i couldn't figure out how to explain that and tell we discovered all the evidence that at the same time schwarzer was representing please he was also representing the trustee and he did so in eleven different bankruptcies so that's a little twist in this case and that's why we filed our motion for conflict of interest so that you could see our documentation that that's what happened here wait a second this brief your parents opening brief lists both of you and shoers are as representing the appellant that's interesting isn't it yes in fact he was my co counsel and i had no idea at the time that he had a conflict of interest but it was interesting to me when i found these documents i said you know why aren't these in your co counsel during these proceedings why didn't you have access to those documents well i i did but i wasn't the co counsel in either the district court and i wasn't co counsel in bankruptcy court i came on solely as appellate counsel and only after the two courts had ruled against police so i had nothing to do with that whatsoever and that's why this became so interesting because i could not figure out why my co counsel at the time had not presented these documents and so you know he signed on which in in my view is kind of an admission on his part that he failed to make this really clear with the documents that he always had and so he signed on the briefs and that's really quite ironic and at the time he did so i had no idea that he had a conflict with the trustee by by representing her at the same time he was representing police and so in any event if we look at the line of credit loan agreement because that explains the relationship here with police to the bank account it tells us and that line of credit loan agreement is at three our four sixty seven three seventy four and here are its terms it says very clearly the lender is the l l c and the b er is william please the line of credit amount is five hundred thousand dollars and halverson requires police to execute a second document a promissory note commemorating his debt and other obligations under the line of credit and the promissory note is made and delivered by police in favor of the l l c as the lender and i will also tell you that in that  it says flat out that place is packed playing paying an interest rate of twenty percent per annum so it's obviously a very serious agreement now the other thing i want to tell you about the sole signatory stuff back in the credit agreement on page four sixty eight paragraph three market says each draw by police is to be made by check drawn on an account in the name of or privilege and there was absolutely no evidence whatsoever of a relationship there they just took the trustees word for it that there was an attorney client relationship but there is absolutely no evidence in this record other than the n un dough brought in by the trustee that stip is in fact representing police and made these things ok now we know also if you look at the  credit agreement that police is allowed to use the loan for any purposes personal purposes without limitation now you may have a question is why is however since doing this well it's because p has always been a rainmaker and these people have had a long business associate and he is just hoping that police will you know find something that will make him some money so if police has the permission to use the bank account for personal purposes and he can draw on it under his signatory authority it does not follow that he owns the account so it does not belong on schedule b now i do want to explain that stiff e mail in the light of these documents that were never brought before a court and that it's sanchez no other persons in the line of credit line agreement shall have any right to the loan funds records documents and statements pertaining to the loan or any funds in the account and then if you look at the operating agreement that how verson had at paris paragraph six point eight point one it specifically states the non member and police here by covenants and agrees that he shall keep secret and retain in strictest confidence and not in any manner divulge to anyone else confidential information and the confidential information as carefully defined as information relating to financial statements and of course this would include the bank account so that explains the step email when police is just truthfully saying hey i have to get the permission of the owner of the demonstrates that police had a lack of ownership and control of the bank account if he had had on a ship in control of the bank account he could have released them immediately but he was bound by these confidentiality so what is so terribly wrong here is that the trustee had all of these emitted documents by the end of november two thousand and twelve yet she still proceeded to file her ninth claim for a fault oh and what's really interesting in the december twentieth credit meeting precisely at the second are page two twenty one the trustee specifically asked police if he has a credit instrument and a promis sory note and place reminds her that he had already given her those very documents then when the motion for summary judgment is filed here's what the trustee says she says and it's a lie she says the debtor has failed to provide supporting documents for the loan nonsense she had them the whole time and she had the supporting documents since november seventh and yet she filed this on december twenty seventh now what happened here is because these documents were left out and because mr schwarzer was rather compromised by also having that trustee is his client on eleven different matters the impression was left that place own the l l c on the petition date when the trustee knew he did not she knew he did not because she went after halverson to settle for the c and she created the impression that place was hiding his credit relationship when she knew it was fully disclosed in the schedules i j an f that the trustee even refers to in the three forty one meetings while this is like a snapshot photo you know you had this credit facility and it's your only source of income now that's how i started looking at this record because i got the three forty wands that were missing and started to read them and saw that everything in here was discussed in the missing three forty lines but the attorney for mr police any of this forward so everybody is kept in the granting the trustees partial motion for summary judgment concerning the ninth claim in her complaint against mr please seek and seeking a denial of his discharge under eleven u s c seven twenty seven eight four the crux of the debtors ar well as whether or not the corps properly considered what has been defined in the briefs as the step e mail now turning to the first point concerning the disclosure of fifty five fifty las vegas in the debtors bankruptcy schedules its the trustees contention all along that this bank account that was referenced by posing counsel knew to be identified in schedule b as mr please was the sole signatory on this account and was the only person had access to it and use this account to pay all of his personal expenses the years preceding his bankruptcy case the source of this account was also the source of many fraudulent transfers that was committed by the trustee and in addition your honour's the debtor was required to schedule his if it's his argument that he transferred this ownership interest part to his petition they he was required clearly to be to disclose his interest in paragraph eighteen of his statement of financial affairs which requires him to list all previous businesses in which he had been an owner director officer or executive in the six years preceding his bankruptcy case now in the value in all of this information i think it's very important to look at the timeline of this case which is the bankruptcy case was filed on april twenty and twelve may seventh two thousand and twelve the debtor filed his initial bankruptcy schedules as well as the declaration stating that the information contained therein was truthful and accurate importantly the fifty five fifty las vegas bank account was fifty las vegas on september ninth two thousand and twelve the trustee commenced the underlying adversary proceeding seeking to deny the debtor discharge for among other things failure to file accurate schedules for the trust me as part after filing the initial complaint on september ninth requested an obtained ex parte of relief from the court to conduct certain discovery of third party financial institutions and subpoena the bank account for fi record below so trustees position it's improper for this court to consider that because these arguments weighed in should have been presented to the bankruptcy court for it to consider this however even if this court was to consider these documents the here's my question to you in the most your summary judgment on this issue did the bankruptcy court make a credibility judgment i don't think they did your honor i think the issue before when they say something like i can't believe what you said something like that i think the bankruptcy court analyzed the issue concerning when it is appropriate to allow a motion for summary judgment on something such as intent which is namely that there can be no reasonable inference taken in favor of the debtor and that was the case in this case and i think the key factor in that is what has been defined as the step e mail now just provide the court with some context to that e mail that was  trustee regarding the account and then fifty five fifty las vegas at this point you should not be providing any information or answer any questions other than what i authorize you to provide so i should answer about this account this accounts not belong to the d attached are the bank statements fifty five fifty las vegas will cease these statements are for the trial months prior to the bank to petition and then in all caps you do not have authority to release these to the bankruptcy trustee i am providing them to you for your review only was not an established attorney client relationship and there was no evidence of that in the record however if this court turns to be our one ninety this document was provided t somebody else it's not a letter signed by police is it it's not your honor but it's a letter signed by by his counsel and the only party that has the ability the way the attorney client privilege is the individual and with that he s mentioned that mr police has elected to make this decision mr shorter is his agent and in terms of party admissions at federal rule the evidence  eight o two d two allows made by the parties agent or employee on a matter that is within the scope of that relationship and now was the reason why the court properly admitted this in the evidence and did not abuse its discretion in doing so now turning once going to the significance of this e mail it clearly shows that as of a matter of weeks after filing to withhold it from the trustee and did not disclose at least the documentation to the trustee until november as mentioned by opposing counsel however this was almost seven months after  how much money was in that account there were several million dollars that had flown that have flowed through that account within the years preceding his bankruptcy case at the end at the bankruptcy was just a couple hundred bucks right that's correct by the time t cases when the debtor filed for bankruptcy that was it was a no asset state the only recoveries in this case have been through third party avoidance actions and so the identification of this into the in his statement of financial affairs would be very honour's as mentioned earlier although this is somewhat of a new case in this in the sense that summary judgment was granted when there is an intel intent element given the unique aspects of well your honor as i wanted to address the credibility determinations that were made certainly by the bankruptcy court she is finding facts and she is saying that she's not going to believe these lies that he's telling on the stand and that his explanations of things are cute and so when you look at that from the standpoint of they're looking for genuine issues of material fact that's are completely out of line because the bankruptcy court was being the judge  and the executioner now let's talk about the issue of independence here rarely do you decide intent on a summary judgment because you have to get into the subjective state of the person's mind and the bankruptcy court has recently recognized that it simply would not do that in a case we gave to you called in reamer taza and that was in our twenty eight j letter  this is the conditions of this case i think are such that you simply cannot infer what is intent was even aside from the fact that documents were not given to the court that help his intent was when we talk about the statement of financial affairs because this charge is or a lack of a discharge is such a serious deprivation to a de you have to be really careful not to just assume that you know what's in someone's mind and that almost never happens and that of course is the thing that his attorney did stress below  plenty of other evidence he could have brought forward this case isn't just about a formalistic signing of little check marks where you fill out what you did i've heard it said that in the bankruptcy setting it's a pipe dream to think that any of these debtors are going to absolutely accurately fill out these forms in such a way that it will satisfy every require mind answer do you want to send that your over your time pardon would you like to send up your over your time would i like to extend it would you like to sum up because you're over your time yes i would your honour's and i think what's critical for this court is that the honest but unfortunate  is the one who is aimed at in the congressional policy and only this court can further that policy by really looking at what happened here and what it terrible place my client was in because he didn't know that his attorney was compromised by also taking on that trustee is a client at the same time and even taking on eleven other cases was such a thing that i think that everybody lost track of what was going on here he just wanted to continue to have both of them as clients so he was you know living on both sides of the cake so to speak so also there's such an injustice here that i think this court should really take another look at what happened in this case and remember that this trustee is not impartial why would she hide the records the very thing she accuses my client of doing counsel thank you