one zero zero four a one moreover the court announced something that remains perplexed it said that while it had rejected the defense of familial obligation to justify the transfers it nonetheless found these transfers influence just as decision as to whether there was actual intent to hinder the fraud or delay credit if you are correct that the district court obligations that they were transfers may for either past real estate transactions or they were transfers made to support the family those in particular with or but yet the judge said the argument influence your honor in response to your question i wish i could give you further insight as to whether this record judges thinking but i can't see clearly in the it under one zero zero for a one the actual fraud case mindset of  judge is i have a factual finding that you think will to meet your burden of proof by clear and convincing evidence and that finding is influenced by the trial judge's discredit of your key expert witness what i hear you arguing to us is that you want us to overlook the finding of the adverse finding of fact and rule contrary to the finder  fact that you didn't either stablish that proof and the error occurred when the fact finder disagreed with you and i don't know how we can do that your honor the analytical framework that the district court started dispute from the other side yes to our description of those events and facts out many of those facts were stipulated to in the pretrial order those facts were ignored by the district court under its analytical facts that can be taken into consideration for a one yesterday and that given the bankruptcy court construct that insolvency was also outcome determinative for a one problem started in one thousand nine hundred five when celeste michelson relocated to phoenix arizona kevin michelson decided to increase her wages from what had been fifteen thousand dollars a year to in the thirty to forty is michael stone and mr michelson both knew that a lawsuit had been filed by mr henderson to collect the money is the primary one and that's a very very important factor when you look at that this is to an insider and michelson knew that the government had raided the property the gap here is in the the outcome determinative stands now with all due respect the rules if you order disingenuous by saying that the court never intended to make a finding under one and all for a one number one it would not have made badge the fraud findings had it not intended to do that and there's a credibility problem because as i understand it you relied very heavily on the testimony of the expert that the plan call and the judge found that the expert had been successfully impeach and ordinarily when we have that situation if the expert obviously was the one who was going to help the car quantify the damages and the court picked a much lower number on damages than what you compromise on the amount of the money that they're going toward even though they find that there was some sort of profit here but your honor i think this was not a very trial but he has the magistrate is sitting as the trier of fact is the not  we have we have a clear explanation of what he was doing and why he committed there when the judge applies the trial judge applies the wrong standard to the fa reason for the lay was the parties had requested a continuance and finally proposed findings of fact that it's true we did we propose jointly that we went from may thirty first to friday to june third of the very next monday for the delay when you look at the other things the district court judge does wear flip flops on the one or for a one reflects that sometimes things are being put on paper that aren't exactly accurate to the bankruptcy he would have likewise find the facts are there there's absolutely no doubt that there your honor i've got about five and a half minutes off i'd like to reserve five minutes briefly he found this west michelson was an innocent receiver of this property it's hard to believe that somebody who knows they're not performing work at getting paid wages was an innocent receiver of the property in likewise with me arguments about the  in this case in the pretrial order they indicated that they were going to defend with respect to the st charles property on the on the return value based on what the lawyer had told them it's a matter of fairness it's a matter of whether or not they can both use that as a shield in the sort there were documents inadvertently produced we are not suggesting the inadvertence production carries any consequences but in the context of a fraudulent transfer case understand the impact of the pretrial order it's to put the issues on the table it's to tell everybody including the court what if you being well again and once you put the issue in the play i'm not aware of any authority that allows you to withdraw but simply actually misstated the record i would urge you when looking at the transcript i've been doing this for thirty five years i have never seen its trial like this and i'm sure it will given this judge's attitude toward the problem but don't we still have to reverse and have to tell him to clean up his order and i really don't believe so enough to tell you why in his finding i think find ok one of those pages of fraud didn't exist when she started to collect wages after she moved to arizona use the title of saying that but there is that's not enough for anyone isn't well i really think it's i think what the judge was trying to say was likely when you look at the a two in the two thousand and eight or the one thousand and five statute those are in fact of the matter is when you look at there's no question that the transfer went through an insider it was his wife when you looked at the evidence that was developed by one thousand nine hundred ninety five her husband there's a philanderer there breaking up the married she's you explain the difference in wages there is no difference there is nothing that can be pointed to in the record that explains why pre bankruptcy wages weren't treated the same this post bankruptcy wages except that the swire was trying to persuade the district court judge the magistrate judge that you've got taken some of the familial obligations they're no longer living under the same roof they've got the stafford expenses in arizona and while they were revised order i think he concluded i don't even need to go there ok i agree that that's apparently what he did but how could he do that because the union pretrial order argument the whole bit preserve nobody ever dismissed a wine it's still out there i agree it's still out there but i think there's two reasons that would explain it number one reason is that the evidence is so overwhelming on the eight through the one thousand and five statute that he doesn't see a need to go there and number two since it's couched in terms of maybe it's discretionary on the badges of fraud he simply didn't feel that up until the later transactions that met the firm and put it in my own pocket don't report it and two thousand and one i pay my child or one of my children's education then i'm breaking up with my wife so in two thousand and two i give her a car and then i give her a range well clearly there's patches of fraud but the whole purpose of the a one statute is to say is he specifically intending to defraud creditors and you can use the badge t one more time i'll shut up but i have no quarrel with any of the fact findings i keep so i think you i mean assuming you're perfectly correct that the evidence supports the finding fact if there's legal error on one claim don't we simply do we have any choice but to send it back in at least let the nature straight judge clean up his order and no doubt he's going to come out your way implicit in the record that i don't think you need to send that back on that one point of law there's a number reasons why i think the judge felt so strongly and why i think the appellate counsel is really s unfair in attacking his integrity on that you're not in fact attacking its integrity but i sure as heck don't understand what he did with his words i'm sorry i don't understand what he did with his words i'm not attacking his you lose and it doesn't trigger to bankruptcy i really believe that what he has tried to do with the a one is to simply say the eighty two or so overpowering there's nothing in there for you i don't think you can go back is to give different gifts i've given my own children over the years or to my wife if we're breaking up and i'm trying to keep her here it still requires under the a one and intention to defraud the creditors and they say well we'll let you look at some of the best to help the plaintiffs in these burden of proof but it still has to show the intention that the fraud the creditors they haven't done that and that's the problem that i have with their argument i think what they did is they went into the crile trying to prove all three put all their own ducks in the basket of their expert and that the expert turned out to be this dentist or i mean literally he had one hundred forty three thousand dollars worth of shares and four or five different pieces of property he didn't account for any of the double dipping that was going on there were literally hundreds of thousands of dollars of errors that he was making the other thing that bothered me in this case to him it's right in the briefs if you look at the briefs they have asked you in passing down your decision in the they listed their their numbers on page thirteen of their brief they're saying there's two hundred ninety six thousand that they want you to reverse their whole claim in the court was for two sixty nine they've already been paid ninety six thousand all from the settlement there was a bond that they got for thirty three thousand and then they had a settlement with mr sokol for thirty two thousand what they're really doing is they're asking this court and reversing to say give us four and a half times basically what we were ever entitle to disregard all the money that we've been paid and i just think it's wrong and they can't do it i think there's one other crippling aspect of this also there are really two every penny and make sure that restitution was ordered just finding was for ninety nine thousand and i cried going to press upon this with the trial court that yes the bankruptcy judge came in with a two sixty nine figure but at the trying to heaven michael said it was not defending they had an i r s agent sitting in the back of the courtroom he's under criminal investigation and so they took that laying down well but he invoked the fifth amendment to i mean i think it's a little unfair to make the argument that the criminal court with somehow better informed than and the magistrate judge who conducted a full trial on the merits council you mean the bankruptcy judge the bankruptcy judge i'll tell you why i think there's a there is a difference in the bankruptcy case kevin michelson was not participating if you well by way of these testimony when they would come up with accusations because he said invoking the fifth amendment privilege and there hasn't been a criminal charge yet he's got to remain silent he'd been that's not true in the criminal case he's now able to answer some of the allegations mind you they walked in there with their two hundred sixty one thousand let me just indicate a couple of other things that i think were really significant in the underlying evidence at trial and there was have that as the kevin michelson during many of these time periods in question was a highly successful strategic mistake that mr bear his clients made in the case they walked into the bankruptcy case and walked all over again because kevin michelson couldn't defend it and didn't defend it and there was all kinds of bad things again but i think they made the fatal mistake when they came out to arizona well we'll just kind of go on our laurels we'll put all of our docs in the one basket with their our expert and we'll go in and we'll prove the case she stood up to them and we were able to show through out that they think the show and they couldn't show insolvency if they could show it they decided not to do it they didn't bring their extortion errors on that they didn't put on any evidence and so now they're coming back and saying well gee rest us because we've brought up probably put on the worst witness to ever testify in the federal court rescue which by going to the zero one a statute and i simply thin show me anything and just like if i have given gifts to my wife my kids over the years but i have stolen money from my law firm even though there's a badge to thrive you've still got to show that when i made those gifts or claimed it as to the difference between the criminal restitution order in the amount found by the bankruptcy court judge duncan if we found in our favor on that topic and there's no has not been any appeal taken on it  lawyer because i wanted to get opinions from attorney to protect the house so the kids and i had something i didn't go on to find out about cabin it was about the house she claimed she needed to protect yourself from cabin further income during the property well yet she said if they're going to leave they were going to sue me this was for me if i sold my house and left heaven that i could go and i could get something else and that's what i eventually did she was an active participant in the scheme to transfer all of the property in kevin's name to her or they had their sham corporations that they created the paper trails they created or all part of the scheme to transfer a considerable amount of property full evidence with respect to these transactions not from the expert witness but from the michelson's to show there was actual intent to defraud creditors the wages per provide the clearest example that's the only one