doing also committed an authorized practice of law and then when the state district court judge found that he committed an authorized practice of law and defamation filed bankruptcy to avoid the consequences of that court's judgment and we are here requesting that the panel reverse the bankruptcy courts finding that his conduct in filing this defamatory mechanically was not willful and malicious with regard to the  nine b r fifteen or i'm sorry counsel but we take one step back before you get to that on the standard of review is it your contention that the trial court of pride applied the wrong law in part yes it's our contention that the trial court did not properly apply the willful and malicious standard the standard as articulate articulated in re nyberg to the record that was before it you're saying it's a question of application of l fact or is it the law that's wrong the question of the application of the law to the facts right so then it's a question of whether the evidence supports the factual finding that there are that that there was no willful and malicious conduct correct suppose i guess part of the let me be more direct you suggest in your brief that the appropriate way of looking at this is it a mixed question of law in fact that you cite no case to support that assertion do you have a lot of support that nothing specific no sir aren't thank you the willful problem specifically is not limited to circumstances where the debtor desires to bring about the specific consequences  conduct but include situations where if the debtor knows that certain consequences are substantially certain to result from his conduct then he's treated as if he desired to produce those consequences can i jump in now and ask you what were the trial he admitted that the way that that occurs is by putting pressure on an owner to withhold funds from a general contractor in order to then pressure the contractor general contractor to pay the subcontractor did any of that happen in statement he had to know or you had to be certain or substantially certain the consequences would follow from his act and i'm asking you what were the consequences in this case that followed from his filing mechanic's lien statement and if you're having difficulty identifying those consequences how was mr cantos to know or be substantially certain that those consequences were going to occur on the record before the bankruptcy acknowledged that these are things that he expected to happen and i'm again counsel you've said that i'm not asking that i'm asking what were the consequences in this case that mr cantos that were either certain or substantially certain to result from the filing of the mechanic's lien what's the evidence in the record of those consequences that your client suffered i don't believe that that specifically was addressed before the to be the consequences have to be certain or substantially certain actually try to different way we couldn't find any evidence in the record to support that proposition or are we missing anything because that promise and niver does focus on what the debtor knew or expected to happen we focused on his testimony regarding what he expected to happen when they filed that mechanic's lien did he say that he expected it to happen that in fact an owner for example withholding funds from the general to pressure them to pay a subcontractor is the reason in fact us by that is the reason that they would file a mechanic's lien and give notice to the owner so he knew that that was a consequence that could happen but if he did not know the mechanic's lien statement was false he would not have anticipated those consequences correct was my question was there any evidence that mr  that there was no merit to the claim he was filing the evidence in the record was that he took information friends client he made no effort to verify that information he never met this or that it was true  he'd never knew it was false ditty he did not testify that he did not know it was time he filed it but he made no effort to how did he have an intent to cause harm which is what five twenty three eighty six is about an intent to cause harm the record reflects that he intended to do it isn't really a property with a lien in order to pressure during piercing group to pay a rock star who can you direct me to the part of the record where that's is there evidence the evidence i thought was he filed the mechanic lien in order to secure a lien against the property to protect his client's interests that was what i recall reading in the transcript was there evidence where he said he intended to pressure your client in fact use or any evidence other than as soon as he learned as soon as mr cantos learned that there was no basis for his client's claim he withdrew the mechanic lien i believe two weeks after it was filed is that correct that is correct so doesn't that tend to indicate he did not intend to injure your client indicates that he did not intend to falsely file a lien but you also claim that they sued he made no effort before filing that lien to determine whether it was true or not before he went ahead and signed it as of his own but wasn't there under the applicable law a pre lien notice that went out and he got no response to that is not true that is true so there was no indication that after having done that that there was any prelim notice didn't address a number of the issues that in fact the statements in fact were false in the lien statement including the dollar amount owed the type of work perform i think you can see that we're having a little trouble with the filing of the lien being an act and you intended to injure let's move to the practice of law how does that fit within the rubric of five twenty his the merits of his client's claim so if that fails does the un authorized practice of law claim fail with regard to be exception that we're speaking from the discharge as to both matters it's based on the same conduct by mr cantos did you receive the rest or time for a bottle and while mr canto states his conduct was not targeted it during piercing group he followed me in stating that they had failed that during pearson group was the one who had failed to pay rock star if that's not targeted towards during pearson group i'm not sure what it is i just want to make  that may not be apparent from the surface there's always a story behind these things or is always a person behind these things and my client is just a fifty year fifty eight year old  guy who started a business with his spouse who is now deceased a collection firm and they started a little business filing this mechanic mechanics liens they've been doing it for twenty years they didn't with the lawsuit looming and inability defend defend that he should also shut down the collection agency portion of the business which resulted in the in the bankruptcy violence the filing of the mechanic's l actually came into his stepdaughter who had taken over the role of his wife was deceased did the previously notice it went out it came back with nothing they filed the mechanic's lien the minute they got the letter from drole mr cantos immediately contacted his client investigated found out that it was incorrect and immediately released the lien it was twelve days between between that to the best of my client's recollection the only had one other claim in that that entire twenty years where there was another mistake and it was also corrected it was simply a mistake and it can't possibly there was no no evidence whatsoever and the record to support a finding what at all of willfulness or malicious conduct the only the only allegations that plaintiffs can point are that it was arguably negligent or reckless though assuming that that's accurate that's simply not enough under i call it geiger because i can't pronounce the why and name of the your case it's simply not enough the the one thing that maybe may not be apparent in anything in the record in the insistence on trying to force these state law claims into the five twenty three eighty six analysis are if you take a look at the complaint or the summary judgment more ssion all of the state law claims use the private attorney  and so there are attorneys fees attached to those and the plaintiff is very insistent in trying to make those claims fit into a five twenty three a six analysis and it simply does not  judge fisher found that there was absolutely no evidence of will fool or malicious conduct on behalf of mr c to support a finding a willfulness or maliciousness are a couple things that she did that stand out to me in the record that you might want to address i realize it's not required for there to be any personal spite or ill will but one has to ask the question if he intended to harm them why is there any evidence of bad blood between these parties or a motive why would why would the defendant do this what did he have to gain from doing it there's no specific but one just ask why if you assume that if your assertion is that he did it intent to harm what explains that and if there is no such explanation seems to me in a kind undermines that case the other point is and i think this was touched on is that the evidence shows that there was nothing unusual about this process of visa v his other clients so he didn't step out of his ordinary rituals or routines or anything to do this and to me that also sort of undermines the assertion that it was done intentionally or maliciously did you want to address that evidence our position on that is that the fact that he repeatedly did to others does not necessarily make it any less for like for the word problematic in the current situation it just means that he did it repeatedly before somebody well there is no evidence that he was accused of or had filed false liens against others is there with one possible exception that he corrected in that was many years in the past you know the evidence is that though as a non attorney he repeatedly felt mechanics liens out of his own knowledge and that his practice was not to confirm the truth or falsity of those materials before filing them but once again isn't isn't that not sufficient to raise to the level of and w or malicious the mere fact that he didn't know whether it was true or false doesn't he have to have known it was false and proceed did in the face of that knowledge our position is he knew the financial consequences of ways just like it did in this case and that sometimes there are no consequences so there might not necessarily have been consequences for him to anticipate and he quit ok did quite a bit but eventually did acknowledge that part of it and his like i said that his firm's website they advertise their services by saying we can file liens and that will help you get paid faster and he acknowledged that the way that that happened at the end of the day during an owner to withhold