are we ready all right it's a cleveland may it please the court i'm chemically cleveland i represent subic non development gardendale housing and patriarch enterprises they are creditors of bankruptcy debtor charles marson sr by having nanda will securities violation lao while violation and fraud judgment against mr marson we make two arguments in this case the fraudulent transfer case may proceed with the debtor is a party because the discharge injunction does not apply to actions to collect the debt that once the debt is ruled not dischargeable and nd under bankruptcy code and twenty four me and the jet florida case the action is only to collect from rd parties and is therefore allowed under section five thousand two hundred and forty eight the primary argument raised by the debtor is that the fraudulent transfer case needed to be separately declared not discharged in the bankruptcy court if you look at d s ross and spencer cited in my brief they all hold the discharge of the underlying debt permits if we established the requisite elements of section five hundred and twenty three dollars the creditor is entitled to collect the whole of any debt so we would submit that that rule applies to the fraudulent transfer case in order to make a fraudulent transfer case party must be a creditor of the transfer a war mr morrison in this case so the ruled roth and dia's and spencer is not limited to just child support cases which those cases were it it applies to any action to collect a debt where the debt is ruled not discharged india as they allowed revoking a driver's license is as a collateral action to collect a debt it doesn't matter what kind of action here as if the purpose of the action is to collect a debt the debt the action is allowed to include the debtor is a party once the debt is declared not discharged as we have in this case now the debtor relies on one case from the st circuit in ri handy and handy does not apply to this case in any meaningful way handy the person in bankruptcy was ms handy she that she was to transfer it that's significant because she was not the underlying debtor whose debt supports the project the transfer action she was the transferee she had received the property under the health south case in alabama it becomes her property parker was trying to get her property but had not obtained an exception from the discharge having only filed a motion to lift the study the bankruptcy court  discharge mishandles dents in this case we're proceeding against mr marson sr the transfer or the bankruptcy court has held his debt to my clients is not discharged therefore my clients can file a garnish attachment they can get his property by any a lawful means they can collect from him in persona can you please explain one thing to me it's my understanding that your clients are not actually trying to collect  the simmons case which is cited in footnote six of my brave says that the transfer or is a proper party the reason mr morrison needs to be there is his intent to transfer the property with intent to delay hinder or defraud my clients is a reprieve graft is a prerequisite for us prevailing having the transfer or as a party makes his out of court statements the admissions of a party opponent for example his deposition was the primary evidence that we used to we did not have a project transfer claim in the original case once we took his deposition and he made admissions we added the fraudulent transfer case so we're where he's his intent is they pretty reckless we must prove what when i don't understand why you feel whether he's in the appeal or not retrial we can try the case with him as a party and put his admissions and evidence from his deposition directly as admissions of a party opponent since we lost a year ago you could you could introduce it the jet florida case to any time you're going after the assets of someone else in a garnishment or in a fraudulent transfer case they bettered the underlying debt or is sort of a tag along party but way he is a proper party under alabama law and it would make our evidence and it would make explaining to the jury how the case proceeded it would interfere with our right you know to have a fair to the extent that it helps your case and establishes a fraudulent transfer those are admissible those statements that he may have made that evidence that are miscible statements against interest are they not my time has expired my answer your question please yes they would be at best civil as statements against interest so that that would be admissible as well but we are allowed by law to to include him as a party as an appropriate that is exactly what i'm arguing here these are two different liabilities that two different jets one was discharged and one was not but maybe this is the man who was breaking it down to simply but it's not as if there's any way to that mr morrison cares so much about not having this action for seared against him the fraudulent transfer action because he doesn't have the money to pay for it events he doesn't even have the didn't you know pain is present that is it also true that one of the remedies for a successful fraudulent transfer claim in alabama is a money minutes we buy two you can hear me and yet we make two completely separate arguments the st argument was the discharge injunction does not apply in the bankruptcy court we did cite that the as and roth cases for that argument if you look at the bankruptcy court opinion the bankruptcy court said well we hear that argument but it doesn't even apply at all so the bankruptcy court never addressed the role that once you have a debt that's discharged that you can collect against which you can proceed as a separate collection activity now one thing i want to make crystal clear we have a non dischargeable judgment for mr morris and somewhere in the range of seven hundred thousand dollars if you add up the three judgments if we get a judgment and the if the supr alabama reverses and we go get a retrial we get a judgment we cannot get any more from mr morrison than that judgment all we would get is a money judgment against the sons who have separately though one of the sons was transferred seven discharged we can get that irrespective of mr marson mr marson wants to walk back his testimony he wants to test if we call him as a as a witness at trial and start asking him questions he's going to say i had no intent to transfer that these were transfers into the record as statements against interest the trial judge set it up and allows you just to read in the parks that you walk the trial judge wouldn't let us do that in the st trial we had to call him as a witness well then it went to the alabama supreme court in the nd trial we might help to doing that i'd like to have him they are to avoid because you're asking us you're asking us to make your trial easier for you and i'm not sure that that's the proper function of the of a discharge exemption issue in the bankruptcy the proper function of the discharge is to determine whether or not we can proceed with mr marson as a party and that's a black letter law issue whether we can proceed against him or not our motives for proceeding against him while important for you to understand why we want to do it are not in any of the law all relevant in the jet florida case the court had looked at two things this is a separate argument and the pennant even if the discharge injunction would apply separately under the jet florida case the court this court held that you can have a creditor  in a case in that case was a defamation case that the debtor can be sued in order to collect against rd parties and separately an independent in that case the jet florida had a discharge they were discharged from the underlying debt the court allowed a lawsuit for defamation a tort claim against jet florida because jett florida had insurance than other party was going to pay and the court looked at two dollars things is another party going to pay and what would happen if the debtor defaulted so in this case those are the same considerations another party is going to pay mr marson is completely judgment proof i mean he's  flat out i read the cases the court saying that we looked at the question of whether or not the debtor would have to spend money and the state the debtor does not have to spend money if the other parties have to spend money in addition or you well i didn't think about the court cost but the court costs would be assessed against the sons as well and they would have to pay that it be a judgment again like i said your honor i would stipulate that we would not charge cost again sam i can understand if he if we added any cost to mr morrison in addition to the seven hundred thousand dollars some a judgment that that could is what's the result on a case against the satins does that does that automatically create a win for you against the signs are they still have a chance this year by the way if he defaults he's defaulting that he intended to defraud in the transfer so the sons would lose if he defaults they must put up a defense to avoid that well that would that would lose if if they contradicted is defense with some evidence i don't know what it would be if they was is on a mission and maybe that's why you tried so hard to get him in here because you come up before us and you say reverse the bankruptcy court in part based on the stipulation which i am willing to bet you didn't make in the bankruptcy co rrect i did not think about the cost your honor understanding that but why should we reverse a trial court here a bankruptcy court based on something that you say for the st time on the made it in ok i'm not talking about what happens on the dip and the bankruptcy court decided this case based on what it had in front of me that's right wrong i will have to think about it i don't see how that changes based on something that you offered for the st time in the court of appeals it's like saying when you get a court of appeals hey i have this witness who testified to so and so send me back to reverse the bankruptcy court because of that and i'll put in it was never mentioned earlier even addressed by the bankruptcy court so issue was not addressed by the bankruptcy court it was for the st time it was put to me as a question by this court and that is the reason i responded for the st time in th the st time this ever been mentioned the bankruptcy court did not address costs saying correct bankruptcy court never mentioned it never it was never discussed it was never brief there was not a single word mentioned about cost in the bankruptcy court not he would make a defense whether or not if he defaulted cost would be imposed was never addressed if you look at the jet party and the language in the case is much broader than insurance the insurance was the facts in the case so the rule would apply outside of those facts as a persuasive argument d is there all that morrison could not be subjected to any new civil suit about anything based on the bankruptcy courts previous orders any action to collect the judgment that we have this nice dischargeable even if it was new if we found out he had transferred property last year we could file file a garnishment on that property if we found him we had a bank account we could file a new action to collect the judgment we have because it's not his charge we can't file another claim that prior to his bankruptcy if he had had a tort claim that we could make or contract claim that we didn't make we can't add that again his discharge covers all of