good morning your honors richard calcine pabst calland for appellant plaintiffs eighty column construction i'm sure you've read the brief so i don't want to overindulge you with background in this matter this is a construction action in pittsburgh there was tried before the honorable the nasa hopkins of the cook county court on july thirty first and the reason we're here today is there are a series of errors that are all interrelated thousand and seven verdict in september of two thousand and seven biled with the aaa in two thousand and six in those states are very important as concerns when the transfers were made from burn from westgate to burn seven including the last guns of this company were dissipated just days before the aaa arbitration started all of these sponsor dissipated in their entirety after well after the triple a case started documents that were not produced in the cook county case as concerns the services allegedly provided by bodum to westgate to justify the four hundred thousand dollars those items were requested in the triple a case and they were requested in cook county and they were never produced in either case and what's telling about that is if the time that miss is help an inexperienced peer former paralegal at a large chicago litigation f probably lost these documents sometime around two thousand and seven it was after they were already requested in the aaa matter so these arguments which we don't believe everything existed  failed to be produced in tutor for actions including one before the alleged loss of the documents i'm what documents then specifically are they talking about when they talk about the two moves in zero nine  all eleven and eleven don't need any because if they if you didn't have them at the average ration which preceded two thousand and nine then their explanation to the court that we moved twice and lost things yeah that's definitely correct your honor i just want to be very careful about one thing all the construction related documents we would have requested to be fair the no the we don't believe ever existed the evidence the person alleged personal loan that would not have been requests in the fact mr helping during his testimony said he didn't know whether they existed in any time or not nobody really knows how or if they were even lost which you have to understand is drawing that aaa arbitration and it's in the transcript helping gave a deposition as the sole partner burnham and which he claimed that he really knew nothing at all about the project because that was barry communion for him at the time of the construction arbitration later on somehow five years later he decides the collins claim was invalid and that's why he didn't save any money for it and it's just not believable so your questions lead me into the adverse imprints and really take us through it there's an interesting case the came out from this district but the second division on december second two thousand and fourteen there really i think controls just about all the issues this is from last month december to two fourteen w l six seven nine zero zero three two this case is almost on all fours with hours let's talk about how it deals with adverse with a document destruction in this case we have once again a husband all the assets of the corporation it around the time of judgment i think when you don't himself and his ex wife based on an alleged ten million dollar note there was never produced his excuse was well  disregarded because they don't exist here we not only have first of all the imprint should have been granted because of the criticality the documents that we already discussed that were produced instead what we have here is that the judge accepted them in evidence based on testimony and what sharif says is a failure to present unbiased testimony or documentary evidence such as the requested loan documents was insufficient here we don't have any unbiased testimony the second law there isn't any other that's correct i don't recall evidence of either one of them that's my recollection three years later so by accepting this evidence as fact there was never provided that is what the judge will eyes on to defeat the project lincoln bands claim and what's very key about that is the judge then uses the defeat of the pro think that covers the negative inference there also weren't any documents produced showing observation of corporate for maladies such as meeting minutes corporate resolutions there simply wasn't all the receipts there were allegedly created by burnham every month on behalf of westgate justify first of all the payment of five thousand dollars a month and secondly this outrageous payment of one hundred thousand dollars in april those seven there should be some proof there isn't any documentation to justify the hundred twenty thousand or payment on the note and there isn't any documentation to justify the buy thousand dollars a month payments from westgate to burn him during the project itself those don't exist a perfect segue into the delaware statute or human your honor he mentioned that they would be on par with cullen i agree with that and with the delaware statute eighteen you know well remember that this weskits delaware corporation provides i did and what we see here is every single possible creditor it including the course person insiders are paid cullen's the only creditor left but he's me holding the bag here and right tom saying the wrong name says it you can't prefer one creditor over another in bad faith especially where sufficient assets are not retained to cover the debt and here we have the final dispersal is about seventy thousand dollars right before the hearing we still know no wideout was transferred it was just it was in an account it was the last money let's week that out and give it to ourselves there wasn't even a claim that there was a legitimate debt other than let's give it to ourselves his mrs help and says westgate is burning burnam is rather all the same thing in her deposition testimony these are all the same thing and that that's really permeates the whole business arrangement here here again like weiss says the name insolvent debtor controlled by an agent you pay your insider debts in full person without making provisions that the other creditors that's simply not and reach so the relief you're seeking is a judgment in favor of your client based on the evidence presented at trial what is the judgment is it to distribute the assets of wealth that existed prior to the arbitration program basis or is it to distribute the assets excluding the four hundred thousand dollars per annum to your line now what we see is that after s and she bank you a security is paid first there was a group of assets left we would ask for a judgement in our favor of four fifty seven plus the interest whatever that number is now and then obviously if you're six years seven and a half years later that his client doesn't have the money anymore i think we would if they cannot return the funds for the bankruptcy court we're unwilling to i think we would have every right to have a judgment on or against them at that point to do if the trial court that the money be sent paid to the bankruptcy court or there were extensive pretrial discussions in that case the file was somewhere in storage in cook county so we actually she applied a standard of undisputed evidence to find that we were not intitled to prevail in the progeny conveyance that seeing crack standard it's provided without citation and it's just about impossible to prove court were to find that a project in transfer had occurred then there would be a strong presumption and this is on page fourteen there would be a strong presumption for piercing the corporate veil and or the alter ego theory well let's talk about the first of all we have the incorrect standard that was judged hopkins stated on page twelve well regarded then i mean she does go on in the next paragraph is that based on the evidence presented there is insufficient evidence so i mean that  not bona fide entities i mean that's the more important question isn't that right and we haven't she relies on remember her primarily documents that were never produced she takes mr howe pins work very contradictory testimony as to whether these corporate records existed they were never produced as concerns about if she's allowed to make those decisions and she you know who to believe her credibility the testimony by in this case i think that the it you're saying that we would necessarily because of that need to reverse the neck the other two issues absolutely yes and if we can't we can evidence to be considered you still have to look at the facts you stop to look at the northwestern memorial hospital case and how it fits well even this case you have to look on the bride's own conveyance that under the illinois progeny transfer act a transfer is progeny regardless if the transfer was made with actual that intent but with this case says that one of the big arguments the westgate i'm sorry that the defendants made th in the world which certainly did not exist here but you cannot make a transfer even with the most upgrade of intentions that transfer can be set aside as project lead to the transfer hinders delays or defrauds so even if you don't believe we were defrauded which i strongly disagree with there is still a hinderance in delay because by removing no the assets we were hindered from being able to collect what was owed to us so in this case corporate formalities on the fiduciary duty there's one interesting issue that i want to bring your attention for a sit down a number of illinois courts have said that you as an individual  illinois is that it wouldn't be fair for one creditor to have that right and for all the other creditors not to share in that right and that's why the courts have to some extent discourage that breach of produce  duty claim and that was discussed in the fisher tool the stampede tool case from the eastern northern district of an illinois eastern division on june twenty sixth two thousand and fourteen at two thousand and fourteen  one six eight what i found interesting about this case is the court relied on the fact that it wouldn't be fair to the other creditors have one got this preferred treatment here that doesn't apply were the only predator so i think that we should be able to maintain being that he seems to argue in both his briefing at your argument today that the primary issues are governed by issues of law we believe that most of the issues cited in this case were issues of fact which gives the trial court really very strong deference in this case she was the one to determine who had the credibility and it's really very very obvious from a reading of her  certain extent yes the misconception and this is this is a very very basic to this case is that calling seems to i take the position member she was not a shill work she had nothing to do with this project whatsoever the only thing she did was write some checks on a part time basis for m the director of operations the court found that she really would had nothing to do with this with this company and the court accepted her testimony that effect and she in fact had another position with another company so to noun against the defendants in this case that's correct that's right but that doesn't mean that the defendant in this case if he has a cause of action against those defendants he can get the job and against those things i agree but he's basing is the facts that started back in two thousand and six with mr hopper and received a notice of arbitration and the amount in dispute is three hundred  sixty thousand that he meet say well i don't think i'll go six three hundred sixty thousand dollars most individuals and the other side of that dispute deny they owe anything but that doesn't mean i have the delaware act that money should be put aside i meet the does nothing in it don't work this is wrong if you don't believe it don't don't consider it you can't just how do you reconcile that i'll get to the doorway back again but i just want to finish my point here on all the contract between colorado and west gate said that all invoices of mr cohen had to be appropriate approved by the architect or s and t bank would not fund those invoices every done is pretty clear what they should be doing as well let me attack the door wide and then i'll go back to the a claim i can make a claim in his place that's not what the law says it says the only person that has standing is the company itself there is a case on point it cited page seventeen of my free it c m l five i'll quote it creditors generally are presumed to be capable of protecting themselves through the contractual agreements that govern their relationship with forms creditors are often protected by strong confidence assets and other negotiated contractual provisions and that's very apropos to the present case here mr cohen as a contractor on the pennsylvania rock had the right to fall mechanics liens he waived that right in his in his contract he also could have asked mr halpin roebourne partners for a personal guarantee which he did not heed needed that at the trial of this case simply quit the delaware l l c just has no application here i'd like to get back to me afterwards in first because i know the court is troubled by that first test this development feet of boom partners there is an argument that there is nothing that substantiates that feed the nevertheless the court specifically found in their findings of fact not a conclusion of law that burn partners did much work in order to earn that development fee and that it was standard in the industry what did she base it on on mr harkins testimony that burnham partners actually located the land where this project was developed it located at ten it for the land it located a quad tractor being a j cowan it got all the necessary government promise and authority to do what it did it again i believe that there is a testimony in the record to support the development fee that was paid to burnham parker's s to the evidence and this was another thing the evidence of the loan from robbery and more help out of one hundred seventy five thousand dollars to get this thing off the ground and get the funding started to say that that document wasn't produced is just simply not true  westgate presented sufficient evidence that it had its own bank accounts its own office and its own accounts so and if you look at the supplemental record record there is a wealth independent and in the operating agreement specifically for called for a four hundred dollars development fee four hundred for four hundred thousand dollars development fee for those services that's correct as to the documents relating to the loan from northern trust i don't think anybody is disputing the fact that there was a loan to northern trust and they had to be repaid before anybody would be repaid because they had a first lien on the i don't think that there was even a request i could be wrong that i challenge my opponent to show me where i am wrong but i don't think that happen again that's an issue of fact that we can rely upon the trial court the trial court was in position to judge the credibility of the witnesses and i think it certainly should be upheld by  surely duty that's really a question normally it's a question of fact it can be a question of law for instance and attorney clearly has a fight to sure he did to his client more charged for four hundred thousand dollars in extras on a two million dollar job the fact to collin told mr hoppen two weeks after the job started that he had underbid the job with whether he did or the company six the return of the money the creditor has his own needs to protect himself either through liens guarantees or whatever and mr cohen did not take those steps in this case there's another two rather important factors if you look at the supplemental record at tab k it was exhibit j one in the trial court it's a letter from mr c ten percent member why wasn't he named in the arbitration proceedings well they were not but we believe that there was some kind of secret deal that's not part of the us that gets around them ok that letter your other other anything else yes found that she had no connection whatsoever with this project that she had a separate job just because she's the wife of robert help and who was who was the manager of the developer he named her in the suit why i asked her on several occasions that she had no other ship interest in any of these companies that she was not a member of that she was not even an employee that she was not paid by any of these companies and that she had a separate job and in fact