panels have been telling us to for six years and that is conduct an evidentiary hearing to determine whose rights and the subject funds were severe the adventure hearing was conducted by the honorable dolly g who would replace judge rio who had parties she issued an order with comprehensive factual findings of fact it's redundant and conclusions of law which resolved once and for all for this case the k v c bank as a lender has a superior right to the subject funds over phillips a judgment creditor in reaching this conclusion the district court established the existence and validity of the subject loan documents she found the k p c bank had both an equitable and contractual right of set off before during and after the short lived ten business day tomorrow period she recognized that under well settled law the bank has a superior right to the funds of its deposit or visa via third party judgment creditor and she rejected philips arguments that the t r o somehow extinguish a sting which k p c banks superior right to the funds as a result of this finding at the k b c's ultimate sapir writes in the funds the district court also correctly determined that no matter what the bank did during the ten day tomorrow period philips had not suffered any damages as a result the district court also correctly determined that phillips had failed to properly executed judgment with respect to the subject funs it did not issue a writ of attachment a writ of levy on the bank account based in singapore or the bank account in new york she also and as a result of that she determined that the district court lacked the  authority to require that the contested funds even be deposited into the registry of the court in the us that ruling was based on the ninth circuit's decision in the whole out versus the state of marcos case she also determined there was a dispute  saffir already of funds to the bank the lack of enforcement by phillips and the lack of damages to phillips should be affirmed in their entirety and we don't think anything in the briefing by phillips would prevent this  court from affirming in their entirety on those on those three issues one particular argument raised by philip so i want to highlight here before turning to the things the one or two things that we think the record got wrong phillips's repeatedly argued  that this court has already determined that k v c was unable to assert its right of set off in proceedings before the district court they make this argument they say this is an argument that a ruling by implication i would submit to this court made no such determine by implication or otherwise rather this court repeatedly reiterated the need for an evidentiary hearing so the district court could analyze the respective position bank to the lender with the right to set off and philips as a judgment creditor if phillips was right we just don't see why the district why the ninth circuit would have even called for here and if this court had already ruled in favor of philips on what was described as a quote unquote hotly disputed issue i now want to quickly turn to the aspect of the district court's ruling that we are asking this court to overturn when this case was last room remanded for the long awaited hearing this court stated i'm going to read a quote from the phillips three opinion quote if a v c banks writes to the transferred funds are not superior to those of philips then retaining those funds violated the t r o and the issue of the banks a period already was not even before the first circuit unfortunately for the bank in that case they had failed to raise that issue at the district court level but even if your rights are secure you can't just take the money when  freeze acid order well we think the key is that the funds were never made unavailable if phillips had kept the chereau going if it had taken the steps necessary to enforce its judgment and if they had proven to a court of law that they had superior rights as judge she noted in her motion to reconsider the funds would have been available for them to enforce telling the district court for three three opinions in six years is conducted over the injury hearing to decide once and for all who has a period right when you read those two together we think that's the key issue if the bank had superior rights and am not sure that was the implication of that's necessary implication  well i would not i would turn now to another thing that we think the district court got wrong and that since my client was a non party to the underlying lawsuit they were need to be evidence that my client isn't abetted the con temptuous conduct and the district court made such a finding but it was based on three internal banking e mails that were sent after the t r o it already expired and they talked about seeking repayment of debt obligations but there's no evidence that any further payments ever were received from the debtor and again i think the key is that those e mails happened after the arrow period expired and they didn't include admissions saying i'm glad we did a did x y and z two weeks ago it was saying you know it was talking about strategy of getting repaid on the loan going forward but we don't think that's a sufficient basis to make a clear and convincing finding of aiding and subject you know that the bank knew there was a t r o clearly they the funds that were hidden in many intermediary account new york those were frozen because there was no the defendant didn't have an account in the new york branch the funds that came from other that makes it unavailable oh well internal bookkeeping purposes show that you had taken control of the money for the bags purposes for the bank to benefit from well actually katie asset order and the singapore branch didn't i mean if that theory if your theory that nothing was ever an available is true you know the new york branch could have done the same the end a finding of contempt obviously a bank doesn't like that as well but the as far as a monetary result result of the monetary result that my client is seeking overturn is the attorney in the possession of this bank that order placed a fence around the totality of the property of the cats the entities that was its purpose that water stated the only one who could be paid was my claim that also order also for bid any bank or institution from taking any action with respect to those fenced off assets that would make them unavailable to my client it to you i mean they didn't take it and give it to somebody else well no you that basically they had the money and they kept it and this far as i could see it was it would have always been available the fact that they made some bookkeeping entry would not have relieve them of the obligation to pay phillips if in fact phillips was ultimately entitled to the money well your honor let's take it from an execution perspective to the extent we her account because the k b c made a bookkeeping entry and gave it to themselves but make them give it back to us i agree one hears you agree i absolutely agree but here's and that is the reason why we're here mechanically what happened are you here because of counsel fees which is the next question that i want to ask you i mean that that's one of the things that troubles me about satellite litigation where there's actually been no no no damages as a result of what you know what i've characterized my colleagues may not agree as a as a book keeping entry who gets the money if you win your honor and so far as the the counsel fees i mean who are you going to get it all in the end is it going to wind up in your pocket yes so your client is not going to get any of it and now we're engaged in a kind of satellite litigation cases here for the fourth  time and what let me tell you about as we say you could you can answer me this seems to me to encourage you know satellite litigation where there's been no injury it's not as if it's not as if you collect that even a dollar and said well we're entitled to counsel fees you collected nothing your client suffers no damages will not see a penny of this this mechanically to go back to my original point when this action was pursued we had the right to those facts there was no question about that we had an absolute right to those funds that was the reason why we obtained that injunction at that point and made them aware that we served on them the number in the end you were an entire bill to them for the funds that were allegedly the subject of the contempt your honor i'm assuming i know you may disagree with your adversary but i'm assuming the correctness of the wise of the district court's order well in that that that is where the district court made it clear error of law but whether she was right we circumstance where you have an equitable up right of offset where you have a contractual right of offset and we you have a bank or something but before before you receive possession of the funds you receive an injunction that says just payment receipt from this universe of people dispensed off you can't take it the corollary to that body case law that gives them recourse says under those conditions you can take no greater rights all they are restricted functions so when you take them you take them subject to the restrictions in that order which left nothing available for them because they have been in effect fenced off from my that after that they received the money so it wasn't just the keeping they didn't have the money they received in money and in violation of that asset freeze order put it in their own account to benefit katie  unlawful they were contemptuous soon contenders they made those knowing that they were in violation that injunction before the bank received them we had notified them these funds are subject to our restrictions their fenced off for us along the bank received an injunction sat down with a whole group of people these e mails show and said we're going to take those funds because it's going to accomplish two things and they sat down with the principal content but i don't understand i thought the taking of the funds was not the basis for the contempt but that was rejected by judge rio won and at the very least affirmed his decision on and that was affirmed by the ninth circuit and in i ask you are you saying they should have taken the money and you said yes mere receipt mere receipt under these particular conditions because that was the ruling that's the law of the case we agree however from attention perspective they receive the funds they then sat down and made a decision internally with shang who owned all of these contenders who had a guarantee and he was one of our defense he was the driver with all this infringement and they sat down together and said we're going to exonerate you guarantee in concurrently get paid in violation that order thereby rendering the funds available to us is the same thing is if i said i'm going to grab your clerks walk run down the street to wall street wells fargo and if you can't catch me even if you call wells fargo and say mr o'keefe is coming with stolen funds to pay off his long under the principle of law there are none seeing if we get that money it doesn't matter it's ours because i really would have just i don't i don't understand that that's the position they they they made the entry they credit it to themselves and they would have had to give it up if you would ultimately prevail in fact in in the language that was read before if in fact philip's rights are superior and k b c retained the funds as a set off to k d x's debts while the t r were in effect k b c would be in contempt ultimately determination which i'm assuming is correct for the moment is that your rights were not superior you know everywhere they were and in contempt certainly if you assume that you know damn well i'm willing to say that that's not conclusive but it just it just seems to me that the the the if if wells fargo had my law clerks that you brought to them and i said give them back to me they would be giving them back and that's what would that's w that's what this analogy is but they made it they made an entry crediting their own the set off and if it turned out that phillips was entitled they would have given a name they just in the suppose of the court said you may have priority but you don't get to take the funds in the teeth of the injunction that taking was a violation injunction moreover the concept that a bank can say i get to violate an injunction because i'm good for the money when you went in if you discover that i violated the injunction it's always ok because i'm a bank and i can pay it back i would also note that the purpose of this hearing is in part as this court noted in philips one effectuate the rights that were preserved for us under that hero as this court said in philips one to the extent you had rights under that iraq to protect that fenced off part of dollars we're going to vindicate those rights all those other issues would it be feasible on the content on the on the council fees this money with that would it be feasible to mediate that you could prevail on or was arguable was the council fees or would that would that be something that would be said that could be mediate both the lawyer in the grind you just said that if you want on the on the can well you know money does your client have to pay you well in part there was a period of time where we were on an hourly basis and then for because mediating that narrow claim and you don't have to talk to your client because you are the client well listen you told me in the end one of the early questions i asked so it wouldn't be feasible i mean this is in the grand scheme of things a little getting in federal court over a couple hundred thousand dollars it's not it's not it's not you know necessarily the most efficient use of your talents well your honor the first thing is that i've been pursuing this since two thousand and kept doing things that were entirely improper and i think it's very unfair that this this litigation is so protracted and it shouldn't have been and it's it's too bad that we continue to have that situation where there is one thing i would add to that council statement to the effect that i'm very glad there was evidence or hearing because i want to then that is not the case i demanded and propounded discovered repeated to the lead to them and they refused to produce anything i was only a able to obtain discovery when judge judy essentially said you will produce period end of story it was at that point in time that i discovered that they had already taken the funds they had sit down sat down with a coke and pen nor fouch and sought to open new accounts and to engage in a plethora of activities which violated the injunction it was also i'm sorry a very it was also at that point in time when the first hearing before this court the bank represented the funds were frozen over and over again until i obtained that discovery then magically we see because that was the representation the court had the bank come in during that first motion to modify and said we took the money we took the money i have absolute confidence of the judge would say you violated the injunction that would have foreshortened all this litigation then it would have been a very simple issue which is the legal issue who is entitled to the front and the phillips one this court said to me go back down there bring a contempt action and you will be able to get your funds now the only circumstance under which offset right or banker slain attaches is to the extent that the funds are already in the account or in a circumstance where the bank doesn't know that those funds are subject to restriction