morning your honour's may please the court i'm donald trump les i represent the appellant's in this case peggy and jennings and if we are here seeking the reversal of a motion for summary judgment granted by a bankruptcy there was absolutely no evidence to find that she could have had the required intent under bankruptcy code section five twenty three a four or five twenty three a six and that is required for each debtor to have the subjective intent furthermore the another issue that i'd like to address with the court is the damages the damages must be reversed because there was no underlying desk that was found by this particular judge independent of any contract and finally and also in damages that it was miscalculated at the very minimum and with regard to doug jennings it should be reversed because there was evidence in dispute as to what was actually his intent when he undertook certain conduct that the court found to be sufficient intent under five but in america animal legal defense fund this court determined that the standard for motions for summary judgment is that they should only degree at it when there are no disputed facts and no fact finding by the judge in this particular case or all the evidence that have been presented at the prior to the hearing for the judge's consideration by the germans in dispute was disregarded the court actually said that it was self facile litany of facts that would determine that the conduct undertaken by the jennings particularly by doug jetties had a justification that was not a justification that you could find that there was agreed that she had had no connection with them in fact they agreed that she never made any representations to me she never represented them and off so the only evidence that they were relying upon was that she was a signatory to a deed that transferred the subject property soley to mr jennings her husband and her testimony was i did it because he asked me to do it that's not sufficient subjective intent of bad will of something that is a culpable bad intent that is in fact evidence that i didn't have bad will and get the judge sent in this particular case that well she was a broker for thirty years and she must have done what she was doing and and this essentially saying what doug jennings may have done was important to her who cannot important you cannot transfer as this court has previously decided you cannot transfer subject to happen and so that is the problem with regard to peggy jennings there is no there is absolutely no evidence to support the five twenty three eight y four are the five twenty three a six now with regard to mr jennings the court tried to determine that he was in fact a fiduciary under five twenty three eight two he was not good clearly has to be a fiduciary with regard to the exact transaction that is occurring in the matter it is undisputed that in the escrow instructions that created the underlying contract that the escrow instructions clearly stated and the party was the a pelleas agreed that the that mr jennings nor his law firm was going to be involved at all in this transaction they not to reverse as to what would be the consequences about well the consequences obviously are beneficial to peggy jennings and i would as you don't you would go back to the bankruptcy court for trial no i actually i think that the evidence in this case is such that this court peggy then this would go back to trial this would go back to trial and i would make a motion at that point in time based on the record because i can i'm just kind of i'm just trying to figure out how you separate the husband and wife here with respect to this so if she were if it oh does that mean this particular debt is not executable again if i'm successful of a motion to dismiss because i don't represent to the court that that's the best evidence they have the best evidence is already been presented the community property state even of the debts of mr jennings so this is extremely important to peggy jennings that she not have to be burdened with that particular debt and that's that's the purpose behind each one of these deed now the court made a determination that he was holding the unrecorded warranty deed of two thousand and four for the please that's not the issue that i skewed and that's not the evidence mr jennings the evidence is is that he took the unrecorded deed and held it because he had informed the appellee his early on that i can't have this recorded we're not going to do this underlying transaction if the deal is going to be recalled because it's going to trigger a good one sale clause and i'm not going to i'm not going to allow you to now come in and cause myself and another owner in the property you have to pay a higher interest rate and so he was holding that  trigger it would have caused to do one surfer was undergoing as a lying underlying know and that was not acceptable and it was acceptable to use that ok you know we need this transaction ten thirty one to occur and we're agreeable very typical statement as to where the deed will go the copy of the deed will go and at that point in time when the deed was created a warranty deed when it was created mr jennings put that when recorded now that's a question dispute as a matter of fact your honor i'm glad you bring that up because the other side wants to say well that shows evidence that he was holding it on their behalf no that isn't at least evidence in dispute and  that clearly i don't want the deed recorded and to i'm holding it for me that's the purpose that i have this if i deliver the deed to them the original deed to them they can record any time and now i have not received the benefit of my bargain in this particular case and they've actually breached the contract but my damage has already occurred so that's all evidence that should have been presented through examination on the witness stand that the judge essentially ignored that dollars of equity in the property that's required under ten thirty one that was their requirement and he didn't want them piggy backing on his appreciate it equity out of developed piece of property and they were agreeable to that getting a loan he says he did they say they hate that they don't recall that that's an issue in dispute but when he went to the bank he the bank didn't appraisal the profile of property was three point three million dollars that left seven hundred  eighty some odd thousand dollars based on my recollection of equity that was sufficient for the of kelli's equity in the property he did not by virtue of entering into that two thousand and six warranty deed or going to the bank to h contract the to find for the appellate use in this case not to reverse this case this court has to determine as the bankruptcy judge should that be the intentional tor there are certain key facts in this case are simply undisputed one is that mr jennings was the attorney for the ramos family he had been practicing real property law for forty some odd years did not record the deed later he and his wife executed a new deed transfer in the property to him as a sole and separate property again all this is a disputed uncontrover applied for a loan on which he lied on the loan application that there were no undisclosed interest in the property he he then borrowed about a million million one out of the property out in our papers then the nonmoving party needs to come back and show that there is evidence a material fact that could convince a reasonable trier of fact define for the nonmoving party that's the test and that's the test that the bankruptcy judge in the district judge both applied in this case now the district court in the bankruptcy court didn't make factual  you know didn't weigh evidence and make factual finding but they know what a reasonable finder of fact is going to be able to to believe and what would what would counter the undisputed  evidence they both they both sit as finders of fact on when they conduct bench trials and they both examine this case you know very carefully mr jennings argument in this case and his testimony in this of trust in there so you can record it once you have you ready to record the deed and then when the escrow closes the money is paid from the seller to the buyer now mr jennings who who is not just a lawyer he's a real estate lawyer he's been doing it for forty years he testified that he had conducted over three hundred real estate transactions his idea and this is him this is his explanation of how we had these two deeds and how this all came about his explanation is well i wanted to exercise the option to repurchase a property so i needed the money to do that so in essence what he did is so he so how does he to assume he forges he and his wife forge a deed on property that they don't own conveying the property to to him knowing that the deed to mr jennings client had not been recorded because it's sitting in mr jennings desk drawer or in a safe somewhere they record that deed fraudulent li they go to a bank to apply for a loan they lied to the bank so there's no secret and the secret interests are undisclosed interest in the property and then they get the money ok now the radio reports of property so they don't repurchase a property they just give the money that's his explanation no reasonable finder of fact could ever find that compelling anough to overcome the facts the undisputed facts of what we have in this case is that these are real c professionals mr ramos had only an eighth grade education they they for this grew out of and his representation of ramos in various proceed you know let's talk about her involvement and remember that she's been a real estate broker for thirty years so she's very familiar with real estate a deed to the ramos family in exchange that's going to be exchanged for one point three million dollars in cash now for anyone who's ever got a loan on their home or were purchased or sold a home  these are like other documents have been notarized so it's not just like here's a stack of papers a sign and they actually have to go to the notary notary opens the book you have to sign the book sometimes you have to you know pay your hand up and swear you have to put the thumb print in the book so if she's a real estate broker she knows what this means she's conveying a piece of property and then two years later she's conveying the same piece of property now who received the money the one point three million dollars yet was she she testified that she didn't know what she was signing  any attention to it she said doug just put this in front of me i've done this before told me to sign i just signed i didn't read it now if if we credit that testimony under stand your argument is that's not credible but that seems to me to be a jury argument as to whether she's credible or not credible yeah i don't you know i don't think it's necessarily rises to a jury argument if it's if it's not sufficient to overcome the the facts that she signed a document other the other causes of action don't require frontal intent for example embezzlement only requires that there be circumstances a prod related to the transaction and poor example him lying on the him lying on the loan application the fact that she's that she's signing a deed of trust that she's already this year already conveyed once before those are circumstances of fraud it doesn't require fraudulent intent on her part and no forget that she was that there was also civil conspiracy as to these things and while acting in a fiduciary capacity requires no intent whatsoever is simply requests so what's so what is mrs know apologize or not i don't so i've got paragraph four i've got larceny embezzlement and then i will fall in malicious injury or those different things or is that just larceny in both different things larceny is one thing and doesn't another thing right do i have to be honest counsel i still feel like you've answered my question ok i don't know what you mean what is the evidence of that she had some kind of intent i don't think that you can get to larceny embezzlement willful and malicious injury without showing some kind of intent on her part now she testifies i didn't know what i was signing and how do you how do you get past how do you get how do you prove intent will again i understand you know when you don't believe her ye embezzlement and you don't think a jury is going to believe or no no but the question is at this stage if that's what she's alleging how is she are you entitled to summary judgment on this question doesn't that doesn't require intent the what does require it property non owners appropriation of the property other than the use for it which isn't trusted which is which is made here circumstances indicating fraud and there are certainly circumstances indicating fraud not the least of which is remember the property the company leasing the property is soley owned by her she's a present the company she testified she's the sole employee the company lease that property for five years including two years after she conveyed the property to her husband now why would someone convey a property of their husband and then continue to pay rent to lease that property from the ramos family that's certainly circumstances  indicating indicating fraud is simply to know that we were fraudulent tent but there was something there was obviously something you know she knew that there was obviously something not right here when i asked her in deposition i said well you know first i ask her about the company oh yes it's my company you know i do like decorating and are you the president yes or any other officers no other any other employees no it's ok well after you sign this do you did you notice that the next day there was a million million three cash in your bank account no but you know my husband's law firm takes care of that but you've never you never opened it never open bank statements let me ask you a question so another way of getting at this point is to say that how could the bankruptcy judge have gotten to this conclusion without making a credibility finding the only way to get there is to say that everything she said in her deposition is untrue and that's so so there has to be yeah it has to be the the fact that the bankruptcy court judge these two deeds there are certain inferences that can be drawn from that which is that she said she sold the same property twice now once you establish that the person you know the the nonmoving party has to bring evidence that a reasonable trial that's right would be a bench trial yeah and you know and i think that's an important point because when you have the same person who conduct a trial grant summary judgment and you say well in front of the judge instead of having the judge look at her deposition right although as judge believe has pointed out you know and he did this on his own i mean he he went over this case for you for months he actually went into the deposition says she she doesn't remember or doesn't know every significant question is asked for her he count of them i hear the number of like one hundred forty times or something but that would be before before judge adler and certainly i mean one thing  that concerns me is that you look at this trade winds you know the way the way that they used this trade winds company that they used is that you know the jennings basically u you know entities to harbor assets so that the you know the can't be found by people or they can't be accessed by people you know one important reason for having piggy jennings on this on this judgment as well evidence i think a piggy jennings and the important thing is that most of these things don't require a specific frozen tat but by how do you get past the fact that she that she basically sold the same property you saying that if you look at the entire that the bankruptcy court in the district court looked at the entire record and looked at her statement concerning what she knew and didn't know when interviews no genuine issue of material fact here  particular the district court i was surprised you know of the decision was under submission for many months and when it came out i was reading it only when he made reference to the number of times that she had had sent her deposition she don't remember or didn't know that wasn't something that was in her previous that was something that he had taken out of self to go through the underlying evidence itself the transcripts page by page and actually count the number of times she had done that so you know he did  reviewing the in the truest sense of the word of actually going back to the original evidence and revealing it in detail even portions that there were not even mentioned in the briefs so i think between the bankruptcy court in the district  but you have to show the intent to defrock and that's what's missing with taking a chance and correspondingly on the last point with regard to both the determinations by the bankruptcy judge and the district court judge i invite the court to again read both of those decisions when you go back into your chambers you will determine that the improper standard was used as that standard has now been established and i am a legal fund counsel do you disagree with m counterarguments and this is particularly important when we're talking about intent these discharge ability statutes are extremely important to both the creditors and the debtors but the creditors have a high bar especially i capacity there is a real serious concern here about fiduciary capacity and certainly there's none by peggy jennings the mere fact that she's thirty years a licensed bro but what counsel doesn't tell you in the over in the evidence is that wants to see that and that is that civil conspiracy does not meet the requirement for these types of frauds that's in the particular decision counsel is this is something that you've cited in your brief no i did not but i'm green it up now because