and as we commence this oral argument what some might consider a fairly dry area of the law the application of the provisions of the bankruptcy code on the effect in the pursuit of project transfer claims the question here in answer to your question if the court is going to apply the demeaning test in the way the litigation trust is asking then yes we would be asking for a change of control test because the control test would give this court the tools to look at this practically but you don't have to do that and the ruling that this court can enter here doesn't have to be consist in consistent with more good storm or good store dealt with entity that had clearly and when the argument was in hawaii and i listened to the oral argument and listened to the to the positions articulated and the arguments there were about a sale of a piece of real estate where the money was going to the purchaser intermediary had no discretion on what to do with the funds and also the other distinguishing fact is the recipient was represented by counsel very different facts here in the notice your argument then that even  they see created the funds from all design and put it into a secret account that was hidden from wall design employees was established by the debtor put his wife used his personal address in your aenima buy lottery tickets well the evidence here shows that well could do that and didn't do that he spent the money on whatever he chose to do if that's not dominion i'm not sure what is and the fact is that there isn't a strict liability test on dominion and if you imparted a strict liability test you've been doing injustice not just to my clients but to the code because the code if you look at the code the code defined transfer very broadly and even the legislative history of the code talks about a transfer can still exist even when the change of to it without a change in title without a change in legal title now the code doesn't define transfer common sense in the webster's dictionary says about transferee someone who sees a transfer well because of the in ecuador the fact that that it was set up secretly by the husband you're saying isn't dispositive to the argument because the initial transfer was still to his account on which his wife was also the ethic natori yes it's well it's i would submit to the court that while income and more extra says legal title strongly that's they they hold that people in the bells position is not the initial transferee that court basically says that the back to their power to direct if in the facts of video there was a purchase of a cashier's check and this one thirteen in video said that the principal was merely a courier that's what the we said he said he's not a transfer he's a courier he took the cashier's check could do really anything else  cashier's check but we made it because it's payable to the casino and paid the casino that's not what happened here it's very factually distinguishable because here the money actually went to mr bell of nominally in the name of wall design but to insiders who might it might have the corporate of hard to exercise their chemical intro level funds deposited in the corporation right now i have to respectfully disagree and the reason why i respectfully disagrees actually illustrate in our nominally named general motors and diverts the money over and then pays it as she sees fit at that point and that's the fundamental distinction here at that point she became the initial transferee or here you've also got the fact that the account was actually opened up using his home address with the wife as a signatory when she wasn't an employee of the company so doesn't that move it away from video depot where where somebody who's not even an employee the company now has accessed with the money to do whatever she wants with it absolutely absolutely it is fundamental critical fact that it shows even if it's nominally in the name of wild design it is in control of the dominion i should say the dominion to be spent on lottery tickets you radium mines or among any instances here on lavish goods on other things and frankly i'm buying the only asset my client had to really for their retirement this real estate he used the money the bellas use the money as they saw fit and they hid it by the by the liquidation trustees only mission hit i to know about the void ability to transfer the only fact that they rely upon to support that the money was that they should have been an increase notice was that the money was coming from all the well that so when you consider that consider that they were acting in good faith receiving this money providing value and that there was a two step transaction here it wasn't like video which was just a cashier's check it wasn't like mortgage store where the intermediary could not do anything with the money other than pay manno it was complete dominion by the it's more in line with those cases where the transfers work to the principal and the courts found that that was the first transfer in video depo just clean up the record didn't we consider the six circuit case and based on rejected the court considered the and i don't really i will specifically because i do know that six circuit applies to control the hybrid test and i do know that once or it has rejected that test i think that again if we were going to lead all these tests are judicially created to avoid inequitable results control dominion it's all about the fact that the code if you look at the code and you use a commonsense type attention the intermediary can in all cases be subject to avoidance as initial transferee so they created it through able to do that and the fact that there's in that there's an intermediary who is liable difference here we don't have an innocent intermediary we have a culpable intermediary who diverted control and exercise dominion o and just because it happened to be in longer zines name doesn't mean he didn't have dominion this is where the cases can be harmonised this is where it's consistent and this is where the court should find that the bankruptcy court was right  bankruptcy court found that my clients were subsequent transferees they acted in good faith and entered summary judgment or favor i'd like to reserve the balance of my time joy if i can't thank you  this account was opened had preferred bank in the name of wall design they used wall designs tax id number they use a statement by domestic stock organization for wall design they used wall designs articles of incorporation they had a unanimous consent of shareholder of wall design to corporate action to open that account and they there leads to a very inequitable result that well this it's always the case in these circumstances that someone gets hurt either the creditors of the corporation get hurt or the people who get the clients for years from the corporation get hurt congress address that in in acting in five fifty of the bankruptcy it says who are going to look at how are going to allocate this is the initial transferee and the person fled the likelihood of allocating  risk and figuring out the responsibility on the initial or putting the burden on the initial transferee is that that person having received the direct transfers really in the best position to monitor right so an account that's just mom only and in her husband's business and wasn't she the one in the best position to monitor i think the answer to that is no no i not she well she's in there with mr bello she knows presumably what mr bellowed does she's aware that this is his company she's aware there might be circumstances where she might be asked to write a check for the company we don't know what actually went between them we don't know what he told her what she said in response but it's often the case that you have corporate accounts were a non officer of the corporation is a signatory and sometimes they aren't even employed so i've seen numerous accounts who are an accountant for a company has the right to draw checks on an account i've seen numerous instances where an independent who are strapped and certainly the cases which go love the way a steal do homage to congressional intent but they do what sounds almost logical the monies mr bellows position you wherever they are they they they were just useful to to achieve ill gotten gains well mr bellows position would be because he took it he said oh this was when i spent this money it was my income the problem with that argument of course until he spent the money it wasn't his encounter the problem with that argument was we called the secret account for a reason there were two people he really wasn't telling the internal revenue service or the franchise tax board in california now when you get payroll that's taxable by the to the entity berish had no notice they had they had nothing to do with the fraud yet they have being put in the same boat of culpability as is as are the bellows your honor is not a culpability issue it's congress's intent to do something and it's this circuit's decision that it should adopt a dominion test as opposed to trying to do a good stall examination of every single case and there's a good reason not to do that because then you know you go forever trying to figure out who the transferee is now mr castleman tries to equate circuit your honor while you call it the dominion and control test in fact it is the dominion test and that's been adopted by your circuit as well here gresham philips and mrs henry do the same thing they do it deal with mr bell and they start getting checks from a company called wall design now their arguments have been we didn't know wall design from a hot rock ok if that's the case why do you take a check from someone you don't know does that put you on notice will put you on notice of something which is why am i getting paid by someone other than the person to whom i've sold a real property and i know who i've sold it to because i've signed a grant deed and i got a deed of trust back and it sure as heck doesn't say wall design or if you're mrs henry your providing services to an unidentified place but it's certainly not wall design because she never made that claim does the re circumstance that she was not providing services to all to sign and she gets a check from it so let's talk about what you do in those circumstances you ask the question why am i getting this from someone other than you and why don't you just simply write me the check and then i'm much more comfortable how difficult is that really it's not a problem it's simple to do i acknowledge that people all the time don't do that but they've done that because people sometimes are a little more trusting than they should be or they view it as just part of their economic risk in doing business it's just like the hilton hotel they got a check from a company called wall design even though they may have been approved of contract with bella personally that's correct you're right due course because the holder in due course under the commercial code doesn't replace fraudulent transfer claims and nothing in fraudulent transfer law that says that's the case i certainly never seen dock and but what mr katzman missed was that mr bello is the sole actor he's the sole owner of the corporation and therefore without regard to acting adverse to the corporation everything he off i think the other thing i might want to point out is what let's talk about the argument that this is fundamentally unfair and that as a result and he argued this in his face it's just this is just unfair that allocate the risk somewhere it's unfair to unfair to the creditors waldheim there is zero position to determine to whom while the designer writes checks the person who gets the checks is one hundred percent knowledgeable of which checks he or she gives the number t money as he was entitled to do as an officer and paid the bill was whether there was personal bills or whatever with that money he is a person for whose benefit those transfers were made and he has a liable for those drawn transfers and he's also breached his fiduciary duties to his company and when the company's insolvent it does make a difference because then the creditors have that claim and those are claims of the first look at the six circuit case of first independence capital cork it's a in that says an individual's use of corporate checks would not lead a reasonable person to believe that the transfers revoiced a bill where there was a range of legitimate scenarios in which individuals were titled the funds from the business for their own personal use cleaning salary repayment of loan officer debt shareholder distribution under the liquidity in just the gets a watch or their retirement they have to wonder and question where that watch come from if i buy my fellow a lawyer a lunch the vendor has to wonder where's that what's the purpose of that money that's not the standard for determining good faith nor should it and would be rendered its it would be rendered ludicrous but none of this really matters because who is in the best in evaluating all the factors that liquid interest was bringing up in terms of whether there was dominion with mr bello or whether there was dominion mr walden who is the best who is in the best position to do that the trier of fact the bankruptcy court and bankruptcy last state the case numbers for the record that's fifteen that's fighting to one and also fifteen dash five six two two zero thank