court invited review stating that this is one that mike benefit from an appellate court looking at it and we concur and i also believe that the case would benefit from a review and a reversal of the summary judgment and every man for trial is appropriate we know this court has reviewed the facts of the case which show that in the st summary judgment decided by judge taylor she were all that the transmutation agreement was a transfer for the purposes of the u t a the facts before the court then and now are that shortly after the estates one million five hundred thousand dollar judgment was entered the judgment that it was examined testify that there was no pre or post nuptial agreement with his wife of thirty years twenty four days later the judgment debtor entered into the transportation agreement transferred half of his community property assets to his wife those assets would have been available to the trustee but the judge took the position that as a result of the transmutation remit those assets were no longer available to the trustee and taylor can i can i jump you had to what i think is  and those cases are that it would be an idle ask for the for the court to set it aside there's nothing there for the party and therefore for that reason you know if it was distinguishable it's also the civil on appeal because the plaintiff perhaps recognizing that there was no equity in that property for her did not claim that she was injured financially she claimed she was not required to prove factor was the transfers in those cases did not put any property that a creditor would have been able to reach beyond the payment of the debt so that's why we believe those cases are not a political in that the court has any further questions on who i am what i have a question counsel on how do you think there's a distinction under the statute between when we just started again there was a transfer here that was clearly done with the intent to take assets out of the reach of the trustee that was the the sole purpose of the transfer that was admitted by misters sarkies in order that that's why he entered into the trap is there a difference under the statute between constructor fraud and fraud with the intent to do to hinder or delay and there's a distinction between a requirement for harm or damages or injury under either of those two your honor that's the crux of the case of the statute actual versus constructive there's a significant difference for intentional fraud which we believe that the transfer was intentional we recognize judgment was brought under the it is intentional fraud and that's what needs to be shown under all these cases is that a transfer occurred that put an asset out of their reach under constructor fraud and because of the you know it's a different type of situation and intenser deceived somebody versus a constructor for the burden is to show that the better was insolvent for various other assets and the products of this case frankly and so there was what was shown in the court judge taylor's memorandum decision of december th twenty eight thousand found the transfer specifically talked about the harm and the intent of a fraudulent transfer statute that's what needed to be shown in this case or an intentional fraud so hopefully that answers that there's a definitely a significant difference on constructive fraud and that's not the case we have before so just to reiterate i think judge taylor's description of the transportation agreement made the case that before the transportation creditors including the trustee had access to all is community property and after they had access only to the half of it came the judgment over its property and that's why that's what the trustee needed to show and we said didn't show in the about that with an actual fraudulent transfer claim and the claim it doesn't need to prove that there are no remaining assets and we would say that doesn't need to prove that insolvent doesn't need to prove anything else because it's immaterial that the debtor doesn't strip themselves of the assets when there is actual fraud and i would say this in this this position was presented st by the police in the motion they asset that the trustee would have been able to subject to the judgment that's what happened the trustee prevails ask you a question about california or because in reviewing the property that was transferred a number of the items or the transfer of the fifty percent interest that was whole appears to have been wholly own with a spouse now prior to that community property when the judgment  creditor be able to recover the entirety of that including the community interest direction and then after when it becomes a separate property and there is a cole owner of separate property is there a different ability to recover assets that's what the fragile insurance from it is that hard i mean and why isn't that if you've taken something that you could get a one hundred percent of which presumably would have more value and now you can get only fifty percent which is pacifically found that there was harm by that transfer because it made those assets and available and that's why this or that is all the harm that needed to be shown under this u r the intentional fraud yes that's the harm that needed to be shown all the other extraneous things were not relevant in the intention you're getting close to your five minutes if you want to reserve at this point you want to keep talking go ahead after you well i'm just going to one thing i thought i would just mention is i don't think that and i'm not sure that it's entirely significant but in below was not really we didn't distinguish it as much as i would have liked i wanted to say that a bill or because that was the case that basically i think the court relied on when it said if you have billions of dollars and it's not really harm because you can go after the party and a bill that was out of a twenty two thousand and eight financial crisis did had been transferred the party who was the article or on the deed said it was a fraudulent transfer because they were trying to get  the modified so they say actual transfer but it wasn't seeking to execute on the deed of trust it was money monetary damages so i would just say that a villa is really irrelevant and is not in the requirement you're talking i want to back up a nd it i think when we talk about actual injury what you mean is that the transfer or is left without sufficient assets that could be used to satisfy the judgment without undue burden  expenses that we're talking about with respect to actual injury your honor there's multiple types of actual injury that trustee or that of the t v playing of can show to prevail in that he claim and judge taylor actually gave trust the you have those options oeuvre the court noted that consequential damages such as last rent damage to credit loss profits were actual damages or harm that a creditor could show to prevail on this farm element  he's got one hundred percent of these assets available to me the next day only fifty percent a fifty percent interest which is probably worth less than fifty percent of the whole is available to me why is that not enough it's not enough in this case your honor in another case it might ld be in defense suggesting i'm not left with an unusual amount of property that would be sufficient to satisfy that and that would be your were not there while your and two points in response st as the supreme court in lower court actually adopted this as the standard of review if the defendant is the party moving for summary judgment or is a party that does not have the burden of proof at trial it merely has to point to the lack of evidence on line if he does not actually have to submit evidence negating the plea once the defendant has  requirements what is the statutory cite to the uva that to prove an actual fraudulent transfer there is an affirmative obligation on the claim than the debt which you did or if it shows that the assets were split in such a way that they left john with a difficult to reach assets and bernadette would be attainable assets or if you could show me that by nature of this transfer collectability was hindered delayed or made more expensive then you win but it's like that exactly the same in substance as an insult to the requirement no your honor because the trust that it actually would judge taylor and nineteen of the record was right being thanks one hundred and twenty two judge taylor said to the trustee i agree with you that insolvency is not something you have to prove when you have to show me some evidence some evidence that this hindered delayed or shown me anything and in fact that's when judge taylor gave a trustee that was multiple examples of arm but he could have shown some of which have nothing to do things fall so for example if the agreement had given brenda like i said all of the cash easily attainable assets unless jones this is a call asset and even though those assets might be more than the amount of the judgment it still would have caused the trustee harm because it would have cost more and that's not what happened here and at all if if all you want to do is move on with your lives and and not create any problems for the trustee not cause any harm while you've assets away at all you're even assuming argue endo that the transfer is made fraudulent inten didn't actually harm to any of those cases say that insolvency is one way of showing injury or the only way of showing injury trustee has the burden of proof at trial to prove that the transfer entered the estate nd at the time to the summary judgment motion with her the only evidence judge taylor had before her was the transportation agreement which shows that the directly down the middle even each couple with one half and leaving john with three million four hundred thousand dollars which was double the amount of the judgment at the time and rd discovery had close trustee at that point had all the evidence he was going to have financially injure the estate that not specific response is insufficient to overcome summary judgment in the lower court actually granted some reason thank you thank you very much is blackburn's you know you have a couple of minutes left i'm sorry for the half minutes for me go ahead good well i think the courts have pinpointed the exact issue and i just as a summary i'd say there is a difference between actual found that i would also note that there were evidence of the trustee besides the transmutation agreement which was before the court the court's decision finding that there was harm because assets were transferred away there was also the deposition that was entered into when the st he learned about the transmutation agreement and the testimony was yes before there was one hundred percent and now you only get fifty percent and that was the fitzgerald declaration that was evidence before the court it was part of a summary judgment so it's not accurate to say there was no evidence there was in fact additional evidence i would transfer prevented them from collecting the property to enforce it so that's the call because this distinguishable them are tash cases all of those cases if you read those cases they each say that it would be sufficient to find that a transfer made an asset unavailable to the creditor they all say that that's what process and process integral of process the position that the trustee has  been position of the trustee that under intentional act you only need to show that the transfer property that would have been available but in retaliation all those other cases not only did they reiterate that but those those they turned on the fact that it was an idle act because the property had no value in this case there is value in the property and so it would be the trustee was harmed by this transfer  show in this case in the tension of the case showed harm that was established by the memorandum decision intent is an issue that will be tried and so we would simply request that the court reversed the decision and remanded back to the bankruptcy court