actual notice can include implied notice so implied notice is part of the story here but you don't get to imply noticed and less there's a duty to go out looking and you're absolutely right our position is that simply filing  see one financing statement does not constitute nor us unless there's actually a duty to go look and find that finance six to him and and in this case there are no facts that would have triggered a duty on smetters part to go look for that here would have been to send that letter years earlier that might have prevented us from having to to be here today but that didn't happen and i have a bunch of these cases there are several of these cases that involve satisfy the u c c notice requirements will have affects in other cases and it's clear in the cases that we've cited that there's no implied notice without facts there have to be facts to trigger the duty st a metric to just go looking to find amy hiding in the weeds and i think that i would direct the court's attention to the barclay's decision the texas part appeals decision that we cite in our briefs it's very similar to this case there was actually a financing statement filed in that case  regarding the security interest that was at issue and in fact an account debtor provided an oral notification that was given an oral notification from the assigner to go talk to the us any and even that the texas court of appeals held was not sufficient as a matter of law to trigger a duty of inquiry or to put to constitute notice under the texas to see our case is even stronger than that and i would also point the court to the cases on which amy reali directly and notify them that i'm signed meant had taken place maybe that notification wasn't perfect maybe there were some errors in the letter or in the conversation but there was a direct communication and we have nothing like that at issue in this case interest and i think all of that evidence really boils down to evidence that there was a right to a sign that three d the predecessor cheney another one of the from an affiliate companies that that they that they according to these court filings and these i believe that amy also points to what they say are evidence that metra was searching for these kinds of statements that's actually very a very different kind of evidence there are instances where some metro is obligated to go figure out if the original tort beneficiaries there with the original but if issues of the payments the tort victims who have signed their rights away if they've named multiple assignments so when a company like raptr three b goes to court and asked to transfer their rights may look and see if those if their rights have already been transferred but that's a very different scenario than we have here which is then looking to see once the next party acquires the payments going forward who else gets those rights down the line and when you have a scenario like these found and operated entities that are kind of constantly shifting around their interests constantly assigning all rights to the payments or security interest in the payments for that belief changes constantly evolving you can imagine that this isn't just a eleven point in time obligation this is a situation where symmetric is going to have to be continually continually continually run in these kinds of searches and that there wasn't enough evidence to go to a jury and that even if the court disagrees and things there there were enough facts of notice to go to a jury we believe that the dream structures in this case still require reversal sinatra's instruction proffered mirrors the u c c again that from all the facts and circumstances known to the person there was reason to know that the fact existed the court's instruction adds additional language that was offered by any notice means a reasonably diligent  assignment for evidence of the security interest talked about why that can't be the law under the texas u c c and the trial court essentially left the jury with the impression that this duty existed as a matter of actually did exactly what it was supposed to do but the court never found a duty as a matter of law and as we couldn't have with the other things as weak as it was here there's no case law that supports this instruction there's diligent inquiry of language that you see in for example the spear case about there being a duty to inquire but in each of those cases there were predicate facts that clearly put the party on notice the wrist some attempt to sufficiently to notify to contact the account  and that gave rise to enough information for the counter to ask more questions there's nothing like that issue in this case prejudice is established if there is uncertainty over the effect of the error on the outcome and there's really no dispute that that doesn't establish notice unless there's a duty to go looking for it but the court simply pointed the jury back to the tree instructions which again had this misleading language about their their being an inquiry case is over if not then there are a couple issues that have to be evaluated for purposes of free trial one would be the jury instructions and the other would be the excluded i've been ends so fraud and alter ego are difficult to prove and texas law allows for circumstantial evidence of various kinds to establish to give the jury in enough information about suspicious facts that indicate a potential fraud the story that's a matter wanted to tell the jury was that there is a plan here to insulate assets that three b has to to move them away or to secure them with security interest from other feldman affiliates in order to prevent other creditors from getting to them so  wanted to step back and look at the bigger picture of what's happening where there's a judgment then there's a transfer where there's a threat of litigation there's a security interest assigned that these things are happening close in time but the court really limited what symmetric could interests and again our nic was this was all done to keep money out of other creditors hands subject to call attention to a couple of the things that we were not allowed to talk about to show that pattern to the jury  one of the major categories is pending or threatened litigation against three b in this case that is one of the badges the fraud under texas law and it provides a motive to insulate assets from creditors in this case three  these judgments from other courts with penalties for having done so feldman however testified to the jury that three d face you know threaten litigation with three be transferred security interest to me in fact it's alter ego rapid had been subject to a lawsuit just days before the security interest was transferred and later when these violations are being we're not allowed to also talk about the violations of the state statutes but again these are eating to judgments that  puzzle pieces of the story that show why these entities are doing what they're doing and we think would have been very persuasive to rebut the story that he was trying to tell that everything they're doing is above board that all these entities are distinct standard whether there was sufficient evidence to support the jury's verdict making all inferences in favor of verdict nd briefly the jury instruction and then rd some of the excluded evidence about which to measure complaints on appeal st on the n offered it trial documents that some actually received including a court order that specifically mentioned assignments and assamese there was also an expert testimony about what a sophisticated player in the structured settlement and security winning as a matter of usage in the industry that both refers to future assignments that would occur from securitization but also puts it is always true in the absence of the contract saying you can't assign that the something could be assigned and if that's enough something more specific than just the word sign short so what's the metric did when it received these documents and i'll note that the race application in november two thousand and four that was actually made and it says this in the application on behalf rapid and it's a science so it was not just a provision in a contract that says you have a right to assign but what's important to measure objective is that the parties were focused on this system accident not just read the transfer agreement and think any kind of contract different from having you do do you notice i i'm still struggling to see how there is anything that would make this different from any other any other situation knowing that and you agreed that the fact that something receive documents yes that's part of what happens in this industry so i'm actually made objections and it's sworn statements reveal that it took the information it received and read that to mean that securitizations would be occurring and there would be assignments and then i think what is really the most important point a piece of evidence that the jury considered and made inferences from is that when so much receive this exact same information in two thousand and six in the nd round of purchasing another half of the maze a payment it so what's most compelling here is what's natural did with the information received and the jury was entitled to look at the all of the evidence together not just what happens in industry and i agree with your honor that there will should not be that if there's an industry practice and they're just being assigned it's all the time that now creates a duty to inquire only have here is not only documents that so much received but then what sinatra did with those documents and so when we're looking two sources of financing and the account debtor followed up with one of them and not the other and the houston court of appeals hold that that was sufficient evidence to open the account or on inquiry notice under the stricter statute nine  and so the case law to the extent it addresses this issue where there's a potential right to assign or an assignment that might be coming in the future the case law actually suggests that that kind of notice notice of an assignment that will happen i future that can trigger inquiry notice under texas law because this is your case to not involve the account debtor saying i have already assigned this the account interesting i'm going to need to get potential financing from these two sources and what's similar to spear in this case the account debtor took that information and then went and asked questions and actually exercised a duty to enquire and that's why we point to what symmetric did when it received the work if it's not enough to incite an investigation that's not enough to trigger a duty to inquire here or we actually know that the documents and information sinatra hadn't received excited investigation because when it knew or what this information told sinatra instead the jury was looking at evidence of what's the matter actually did when it got this information now yes it was a later date but the only evidence at trial was that that information was completely identical to the information  six and so her testimony for the time period that she actually had personal knowledge of was directly contradicted by the exhibits in the record in the jury was entitled to look at this evidence weigh the credibility of witnesses and make reasonable inquiry notice exists as a matter of law it depends on the facts and that's why a jury decided this case and what so much is really doing is trying to read argue the inferences on appeal and the notice to enter that has articulated actually collapses inquiry notice into actual notice and i agree there have to be facts that trigger as you do to inquire and the facts are the ones i've covered that we offered into evidence but what's the matter saying is it only has a duty to inquire once it has knowledge that an assignment has occurred and then it's supposed to inquire into the details of the assignment is how they were to delay did the rule the to actually inquire into the existence of an assignment not the details of an assignment in the barclays case that some actual cited implied notice argument was not actually made there and that's in footnote two and so that he says an opposite to what that the jury should have decided whether there was a duty to inquire it did not articulate that objection at the charge conference it also did not submit any kind of question to that effect and the jury instructions that s together require the same thing and so even if for some reason the court were to find that then that articulation of the instruction from spear were not a correct statement of texas law there's no harm because  builds a duty to enquire in to the nudist statute and that's because the definition of notice includes all facts that a person has no or all facts this is me a person should know has reason to know based on the facts and circumstances available excluded evidence three b and whether there was a fraudulent transfer in two thousand and three or two thousand and seven all of the categories of evidence that symmetric complains about being excluded don't actually relate to these three entities or the transfers that so much are claimed were fraudulent for the alter ego finding there was no question at trial that three b was subject to rapid judgments mr feldman emitted that in front of the jury and that was never challenged and so there was no need to bring up the fa know existed between three b and rapid because it wasn't contested and the trial proceeded as if the matter already it did have a judgment against three b the question was whether so much can collect on that judgment in the face of secured creditors rights and sued in two thousand and three it should have been able to admit that to shill fraudulent transfer theory against three b the metro sites no case though that we're alter ego metaphysically makes two companies into one company for all time and all sorry so matter has these judgments the reason for the judgments was irrelevant and once again so much as not explaining how the district court abused its discretion in applying the rules of evidence here the other categories of evidence three b s transfers of disputed payments word a collection efforts and mr goldman's bar discipline from years prior had the same problems on three b s transfers of the disputed payments this happened in two thousand and eleven in two thousand and twelve years after the fraudulent transfer theories are offered evidence that as captive insurance companies they have to submit themselves to review by the i r s which involves hundreds of pages of amy's relationships with its affiliates its with lending insurance relationships it includes audited financial statements and discloses related party transactions and mr feldman has personally overseen over forty of these captive insurance applications one of his businesses is to help companies  and in his experience the iris is specifically looking for this in kind of sham or fraudulent interactions both with loans and insurance and in project relationships it's a matter claims occurred here and the iris approved as tax exempt under the insurance code meaning that none of the documentation of any of the interactions between three meet any inference or about which the metro complains raise a red flag for the i r s to these loans weren't legitimate or the insurance one million and ten million dollars to green to three b c c as part of its due diligence in in issuing that loan every viewed income statements balance sheets and tax returns and noticed no red this excluded evidence that some actual complains about an appeal which addresses rapid the relationship which you wrap it in three d transfers that didn't involve any inference or none of it controverts any of that evidence that actually addresses three  some evidence of some receiving documents because the statute does require authenticated notice receiving documents that would have triggered a d d j and fire there was sufficient evidence and so the jury decided that question in that if this information wasn't sufficient to trigger a duty to enquire when it that actions it took in real time to justice the opposite the jury without evidence made reasonable inferences and evaluated the credibility of the witnesses as the jury was and that in that case to the notion that there would eventually be an assignment was enough to prompt a duty to enquire in looking at spirit self hear the facts and speer the assigner told the account stating that the payments would doesn't make them as joint pains that a letter was signed by the account debtor on date on december th i think on the next day payment was delivered to the wrong person the assignment had happened by that point the account better had promised that it would would make a payment jointly to the ultimate destiny and it didn't do that there is nothing like that in the record here that is completely different from this case and i'm not sure where the argument comes from in that decision that there was simply some hypothetical assignment in the future that that gave rise to to notice or a duty to inquire i think i would also point the court back to the  friend on the other side said that barclays had nothing to do with implied notice that that issue was not a fact issue in the case and footnote to the hoarding knowledge is that the parties hadn't really raised implied notice themselves but it still goes on to evaluate implied notice and articulate the standards that apply under texas law and it explains that the duty of the inquiry only extends to matters fairly suggested by the facts really no mere rumors  statements circumstances that are typical are not enough this is the court setting forth the legal standards and it says where circumstances may be equally referred to some other matter that's not enough to charge with notice and then it concludes that also kind of affects the timing if i know today that you might assign the contract would you sign when am i supposed to go look that exact three months later every day every month every year it's totally open  because i could go i could have said oh my gosh i'm out of sonnet i'm going to go look in see if you did well you did it then and i done you know kind of it's back to this reasonable diligence argument we heard earlier right ivory and i think there's that there's an uncertainty there too that triggered when by inquiring i would have found something else you need to have facts it's not enough that if you had acquired to found something you had to have a reason a specific fact that made you have the duty to go looking and the fact that we might have to keep searching every day every month and particularly a case like this where the the transfers are continually happening the fact that that might happen in the future is just a suspicion it's something that if it's not complete enough under the law it's theirs and you can draw a line there and that's why we say this should have gone to the jury i can walk through some of the evidence that was discussed as well as claiming that your standard for inquiry notice essentially eliminates inquiry notice so please take you like your standard for a green notice that doesn't eliminate it that doesn't make it the same as actually there have to be facts specific fact known to the party to trigger the duty to directly communicate that's the bare minimum their song direct communication that gives you some concrete information that would then lead you to ask questions maybe they tell you maybe they just send a letter that says my interest is going to stop it maybe it doesn't identify who the absentee is for her work well that wouldn't necessarily give you notice of who the absentee it that would give you the implied notice that that you need to keep looking at work could be simply that you're no longer write me a letter to say i'm no longer the one not supposed to receive payments that's generic doesn't use the word assignment or security interest but it makes clear it directs payments to another party maybe you need to follow up to find out what the nature of that interest was in this case there was no communication at all there was nothing there was a u c c one statement filed there was the there were these transfers that gave three b the right to