tom cawley on behalf of the appellant ritchie this appeal concerns the bankruptcy court court grants of affirmative summary judgment to polaroid trustee on his actual fraud claim relating to polar transfer of liens on certain trademarks to riches to prevail on an actual fraudulent transfer claim the trustee must prove that polaroid granted the liens on trademarks to richie with the actual intent to defraud polaroids creditors fraudulent transfer claim is the intent of the debtor here polaroid the matters in the focus is on the creditors of the debtor here polaroids creditors the trustee must show that polaroid intended to defraud its own creditors and creditors will be harmed by the failure of the hardest game the intent to defeat the fraud can be presumed there is no basis to presume that panders must have known that polaroid would eventually collapse there's no it was not in it and that the c e o of recommended not doing it was the c e o c e o learned about it after the fact she did not know all the details one of the details she did not know was the fact that the liens had a seventy five million dollar carve  out to provide security for working capital at the time polaroid was looking to stillwater for seventy million dollar investment the liens with that carpet would have covered that so there's really no concern that the lanes would have impacted power in any way negatively  have an upon impact of a viable impact on power and also your honor the issue here is fraudulent tent they did the trustee has to prove that the intent was to the fraud creditors of poor and  and the law is crystal clear in this state in most states that one hundred percent owner of a company can take money out of a company as long as he doesn't harm creditors for any purpose even a non corporate purpose to the extent the time pedders took money out of pol was the interest rate is a short term loans and eighty percent interest rate was an annualized basis they're very strong and i would have been right there were no doubt the interest rates were high but again those the interest rates relates to the loans that ritchie made in february we're talking and the extent that the the trustee cites to tom petters using polaroid to further screen they talk about two transactions of cash not one of them happened from a sister company pulled right not polaroid t money you could take the company that doesn't make the company illegitimate the company had a legitimate business it only derives its it's it's money from two sources bank loans and profits and you focused on the transfer the the focus has to be on the transfer of the fact th to investors it can never meet its debts and it always needs more and more cash and in a ponzi schemes inevitably fail because they must continue to grow except that they cannot attract new investors they fail and that is how the the has it has developed based on those facts if you look at the independent clearinghouse case the court concluded because of the way a ponzi scheme is structured because it is inherently insolvent for the day it opens its doors because of the operator a ponzi scheme must have known that that is investors would be harmed that you can presume fraud and then in the courts of knowledge to a substantial certainty constitute intent in the eyes of the law and if there is knowledge that future investors will not be paid i sufficient to satisfy the actual tend to defraud them so in a court held that there can be no other reason laughter an inference other than fraud in connection with with a ponzi scheme there's a second element to the ponzi presumption and that is  legitimate business it had nothing to do with the diverting business that tom petters was involved in which reportedly involved buying electronic equipment in europe and then reselling it to a big b pines get pole it was a legitimate business with tom petters did here is he granted leans to ritchie to extend laws primarily to polish parent company  expect expected to be profitable in two thousand and nine when a profit or two thousand and eight but for an accounting change its operations were strong it survived outside of even after the the raid to survive for several months of bankruptcy the c e o of polaroid talked about having strong operations with substantial cash reserves so there's actually no reason to apply the ponzi presumption polaroid again the issue is whether the transferred issue trustee the trustee requests this court to affirm the district court order granting summary judgment on its actual fraud claims the core polow properly found that tom petters acting for polaroid transferred polaroids assets with the actual intent to hinder delay or defraud polaroids creditors the context of this transfer is important the undisputed fact show that tom petters was operating multiple entities and was operating a ponzi scheme to obtain one hundred eighty nine million dollars from ritchie in beginning in february through for all the money was wired directly or p c i on the same day the money was received it was used to pay off prior investors a classic component of the ponzi scheme none of the money went to polaroid and there were no obligations of polaroid arising from the money that richie provided back in this february to may time period fast forward seven months the ponzi scheme was in shambles the first lawsuit had started debts as they became due and the inability to get working capital so she objected peddling control and he transferred the assets on september nineteenth two thousand and eight to but that's the whole point is that she was the c e o and she did express in deposition testimony that she objected to this transfer but that's the whole issue that prompters was in control that he didn't now we went forward with our claim under two alternative theories one was based on the ponzi scheme presumption the alternative was on the badges of fraud with regard to the ponzi scheme presumption although this court has not yet adopted the rationale five circuit courts have in courts across the country not a single court has are rejected the theory itself because it makes so much sense to person is engaging in a ponzi scheme it is inevitable that it will fail s in this particular issue question a federal law or minnesota law well it would be federal law with regard to section five forty  will look at just a street because direct evidence of the transfer is intense it's difficult to look to circumstantial evidence and over time they have determined to look at certain badges of fraud which indicate wrongdoing when you see the ponzi scheme presumption as a separate indicator of fraud or is it true that just fall within just as right  or does it fall within the badges of fraud it's just it's just one of the one of the ways you can afford somebody i believe it is just another way of articulating  legitimate reason for the transfer and the transfer itself is made without the provision of material information so it's a confluence of a number of indicia of fraud but it's another fact finding tool like a badge of fraud which creates a rebuttable presumption and of course in this case both courts below apply the presumption not in the context of a company that was engaged in the scheme itself but rather the individual who was otherwise running the ponzi scheme was also running a number of other entities and both courts found that when that significant here is the context in which that determination was made because as judge nelson found polaroid was in extra goodley intertwined with the ponzi scheme scheme funds four hundred million dollars were used to buy polaroid there's been a suggestion that there's a disputed fact about it but i'd like to see that since the people who are involved in the transaction mr went off in miss coleman testify that polaroid was purchased with ponzi scheme ponzi scheme proceeds and the forensic analysts provided looked at it separately and provided the forensic analysis for there is no disputed fact about that and that's why both courts below found that  but once it was purchased it was used both to lure other ponzi scheme investors with the promise of these assets and was also used to low ponzi scheme investors by last reply never made before before the bankruptcy court never argued before the district court was that first payment was made not by polaroid by polaroid brands a different company but  twenty five is the wire itself and it shows that it was polaroid a polaroid why are paying that five million dollars and more significantly mr when hoff the person who directed the transfer testify that was polaroid that again it's an undisputed fact and there was a second time later in september when again tom petters needed some money he's running all these various entities running a ponzi scheme he directs polaroid to pay another two million dollars and it's because polaroid we've used in this fashion and then of course the transfer in question when the scheme is collapsing and he transfers it days before the government raid on petters the question is inevitable that polaroid at that point would get sucked into this inevitable collapse of p c i well there was three point five billion dollars of de polaroid gets dragged into the bankruptcy and people think that there is some connection between p c i and polaroid there's no possibility of a succeeding compare that is judge nelson did with another petters entity  namely fingerhut a company that was not inexplicably intertwined with the ponzi scheme fraud in any manner and it did not get sucked up into any separate claims being made against company that's the whole issue because predators used polaroid in all of these different ways because it was in fact inextricably intertwined with the ponzi scheme itself it was inevitable that it would fail and that's exactly what happened in furthermore there's a there's a second reason why the ponzi scheme is appropriate also once richie provided that money one hundred eighty nine million dollars over a short period of time are related entity that had no obligation to this investor and took its assets to the detriment of that other creditors to other companies has been found both in the context of a company which is running a ponzi scheme but has some legitimate businesses almost always there are actually some legitimate front to the business in order for the ponzi scheme to be successful and there is another case which it's and the bankruptcy trustee moved to avoid certain of the transactions between this otherwise legitimate entity and its brokers and the court found that it was appropriate to use in that context or there has been other cases and of course the the opposite is also true you can't point to another case where under similar facts a court has refused to apply the case now  we relied on two different theories to prove actual fraud the more traditional theory is the badge of fraud theory which is well accepted by the  going to have been for some time and of course congress did not by statute item i believe bad as a fraud ought be but rather the courts were too they relied on the courts developing common law and there have been a lot of well recognized badge of fraud but that's not an exhaustive list and in this case there are a number of bad to the fraud for appropriate for the court to find namely the transfer of but it got no value this question about value this was directly addressed by the bankruptcy court in its decision a footnote thirty that because there's a summary judgment there has to be in the context here that was laughable because the ponzi scheme was in shambles it was clearly at the end of its days so to suggest that there was any possible  company received the profits it had a clean balance sheet the other company had the liabilities in the bankruptcy proceeding those two halves were subsumed the consolidated the very very different situation and here polaroid was not even though tom petters own polaroid as well as owning the ponzi scheme and there is nothing wrong with a somebody who owns one hundred percent of a company taking assets from the company and using him for a non corporate purpose so long as he doesn't hurt the creditors of the company that's it there's no evidence that the creditors a company of company poloroid were hurt here polaroid had sufficient assets to pay all of its creditors the objection from the c e o to the liens was after the fact the c e o did not know about the seventy five million dollar carve out they were allowed a top of the lane senior to those lanes the additional lending there was at the time of the liens there were north american bank for three hundred thirty million dollars at the time of the liens there was talk about a spice group sell the indian trademark for two hundred million dollars there was there was no indication that collar would