and i would submit that the bankruptcy court in its decision failed to follow that strict mandate of the law and that the evidence presented was not in support of what was required for that mandate important note here i think that the trustee did not join in this matter he did not file a complaint he did not testify he did not in minister the assets that were alleged to have been right what does that matter because the trustee just decided that it was you want to spend his assets pursuing this matter while it was being pursued by the creditor i mean i don't i don't it seems to me that's a nice jury argument if you're going to a jury but there's no legal is that it has there has to be some indication that there was a hindering or delay that the of the proceeding no i understand that argument and you make in your brief i'm just trying to figure out what difference it makes whether or not the trustee decided to join and there's no case law on that that is there now but it there is also no evidence that he was hindered or delayed i would it until may in most of these cases you bring the trustee up to testify even if he does does not join you bring  certainly he knows what's in his bank that bank account of the come parade and he had an interest in and there's nothing there's virtually nothing there but there was no one my problem with that argument is that when i look at the account just looking at the the month before the filing in the mon the filing there's not nothing there the entire time there's just nothing there when they finally catch up to there's thousands of dollars going in and out yes he does it but there are all that money with was not his money that money was  of another corporation that was using that account well some of the money went out to him to pay for things netflix didn't seem like a corporate activity no i and i understand that there he did pay some personal expenses he did pay that his house payment but account that's the corporation that that bank account is that that is is a for personal expenses in fact there's case law of the fater case that says exactly the opposite but that was that was that was there's little difference here here we have somebody who's asking that creditors exam or proceeding does that is there an account at this bank because of this other corporation and your client says no and then later on we discover that there is and money is moving in and out of it at the time whether or not that shows materiality which is the four requirements a separate issue why doesn't the land those facts efficient given our standard of review to allow the bankruptcy judge to determine if he is the individual sexing and torrie on the account that still is that still is not a case in which you can use a two to unite it has to be property of the debtor or the estate and he  that point that is that was the allegation but the the projects that i saw were from his mother in law who deposit them in the account yes that was were it made out to him made up to no detail transportation i think all the other checks that were to him personally were her business assets the business the other business corporation one of the people that say oh i don't know who the corporation is but i'll do it must make them out to ben taylor but it was still a corporation running district just record the bankruptcy court make a finding of fact that there was an intent way so we have a check made out to him that goes into the account and he takes money out of the account of a personal expenses and he says oh no this is all his what he deposited in there and i think that's one of the problems with the findings is is that there are there are hundreds of checks over the over the period of time and and deposits but there's only a couple of these and why weren't these pointed out and so that we could argue that and deal with it was and there was no nothing was pointed out in the findings as to these checks except the fact that yes that one there were these checks that came from the mother in law which was her money put into that account and then immediately paid over to creditors one of the on the house that's what that is what happened on it and i think the clear language of that law is that it has the property has to be and it's just you know that's just the statement in the abstract he's using the corporate account is is for all practical purposes in this case the equivalent of his personal bank account that's how he's using it and he denied the existence of it when he testified at another saying there isn't any and i have an answer for of intent i think there is no evidence of intent to as to his personal his property or as to the state's property i don't think that there is any findings as to that whether or not there's a finding is a finding of fact by the district by the bankruptcy judge i'm sorry keep saying that defendant used the funds from this bank account for his personal expenses  is that finding supported by the evidence yes he did pick he did pay his house payments and some small bills with with that bank only half so phone internet t v water and electricity  payments for kohl's netflix redbox amazon groupon and experian and he's basically using it as a personal bank account i would suspect that ninety percent of it was actually business expenses that were paid out but yes he did pay some person expenses out of it but again that's very similar to what's happened in thurman and it's almost exactly what's happened in the fater case which is also cited in there are those cases in which somebody received compensation from a corporation no i if you know in as i read the fader case and again this this this language is used in other cases other sections of the bankruptcy code and section five forty four being five forty eight a both of them say prop has to be involved property of the and i think that the fact that there was that when you see lots of money going through the account but when you actually see what's happening is these this money is going to pay business expenses in most cases and that there was very little balance kept in the account at any given time is another issue of whether the there was there was intent to hinder and delay obviously mr taylor is a had bad accounting and bad bookkeeping you have a bank account of it you don't have to list the bank kind of a corporation on it as to the taylor corporation itself no he did not listen they were preservation corporation itself no he did not listen up on the schedules but then after he did fully disclose doing exactly the same thing that mr taylor was doing if i want to ask you procedural question there was a trial here yes and your client testified yes and the judge didn't believe him i guess he said he had he would have found that he didn't act with the intent to hinder delay or defraud his for his findings orally on the record or simply that well that he didn't then tell the truth about how his savings to judge finds with the defendant with the intent to hinder delay that it was saying that he was hindering them but he found that there was hindering delay as you put in a non corporate non debtor account and but that i you know i disagree with that ruling but i don't think that's necessary to the decision good morning honors michael wallen for plaintiffs and appellate karen good non destructive realty actions are fact intensive and no two cases are exactly the same and this particular was quite fact intensive as your honour's are aware this went to trial ms good testified mr taylor testified and judge perry russell who's probably presided over hundreds or maybe even thousands of these type of actions concluded that discharge should be denied under seven twenty seven eight to a a to b and a four there was no clear error committed with respect to fraud were present and with respect to the talk about a four for second which requires materiality you enough involved in these transfers to qualify but would it have made a single bit of difference deal with a few thousand bucks or a trial there is evidence presented that there was hundreds of thousands of dollars that was deposited into this account to mr taylor's or his and it is in the years in the months leading up to the bank the filing so there was a of money coming in and out of the account so you're saying that you might have been able to upset transactions that are curd before you could potentially upset transactions that were occurring before mr taylor been honest in his schedules and honest in his media creditors testimony that flows through the account goes back to mr taylor right in the way that you're concerned about you know whether you're concerned about his money that goes back to him or you in some form or another either to his company or to him my client a creditor other creditors and the trustee would be concerned with whatever whatever assets mr kelley they could go after pursue right you know you're not going to claiming that he he preferred other creditors to your client i don't think is any evidence that he got it so at the end of the day what's left  transferred actions could have been pursued levy's could have been pursued we were deprived of the ability to do some of that stuff or even do that investigation because he did he disclosed he failed to disclose this asset i think that there's a incorrect kind of bright it what matters is materiality and in this case there was a lot of money being deposited into an undisclosed account that he point blank lied about and the amounts going in and out were material and so his failure to do that he failed to disclose something that dollars and it's possible i agree and we just don't we just don't know unfortunately and that's why and it's difficult to know what happened how the debtor been honest that's why in the rats case the court stated quote lack of injury to would i would think so your honor to be a motive for the lawyer i also think was the bank's the appellate panel concluded that by concealing the t t i account in the flow of his money mr taylor created a false impression about his financial condition and the value of his business a big key trustee in creditors only have limited information to go on in a bankruptcy case and when the sketch the scallop the schedules have to be honest because if not they don't tell the right story and these schedules and as three forty one a testimony gave the impression that he was not in this business at all and that he had very little money coming in to his business or to his light period and that it wasn't the case so wasn't just a matter of how much money was in the account as of the date of thank you filing meaning how much the credit th trustee could have grabbed from the bank on the date of filing it was also his or his overall capacity to pay in the future you know just how he was doing generally business wise and that's all i have i'm not sure how many other questions what the judge stated on the record written findings were what the plaintiffs counsel previous counsel submitted to the bankruptcy judge and he signed them so there is a conflict in those two conflict or is it just a much conflict a conflict  are actual rule is that if there's a conflict you look at the you look at the context generally you would while you would generally look at the written findings when the written findings were submitted by the one of the parties and they conflict with  materiality there is i think it's very if the statements made by counsel that all they might have five millions of dollars within a couple of weeks after this three forty one day there we spent a whole day in a deposition in which much of it was going over to everything that went in and out of that account and the trustees counsel was sitting were sitting right there across the table from me and never make never pursued any of that so i don't think that the fact that there may have been something