[00:00:00] Speaker 00:
Next matter please Okay council you want to reserve a little time

[00:00:25] Speaker 03:
Yes, Your Honor, I'm going to reserve three minutes.

[00:00:29] Speaker 00:
Okay, and same caveats that we'll do our best to let you know, but it's on you, okay?

[00:00:34] Speaker 03:
Thank you very much.

[00:00:36] Speaker 03:
May it please the court?

[00:00:37] Speaker 03:
Good morning.

[00:00:37] Speaker 03:
My name is Jesse London from the law firm of London in Paris.

[00:00:40] Speaker 03:
I represent the appellate, Thomas Cattell, in this matter.

[00:00:44] Speaker 03:
I know there's extensive briefing on many of the issues, but I'm just going to touch, as Judge Lafferty said, kind of on the highlights of what I think are the most significant ones.

[00:00:54] Speaker 03:
The most significant, I think, is that the panel here

[00:00:57] Speaker 03:
should grant Mr. Cattell a new trial in either or both of the denials on the motion to continue or the motion for a mistrial for several important reasons.

[00:01:08] Speaker 03:
But importantly, per the case law that the court has already reviewed, a new trial is not an extraordinary remedy.

[00:01:16] Speaker 03:
The facts of the cases themselves, like this one, are what is extraordinary.

[00:01:23] Speaker 03:
When you have a case like this, the remedy of a new trial is clearly appropriate and it's pretty obvious.

[00:01:32] Speaker 03:
That's what the case law says.

[00:01:34] Speaker 03:
So that's the first point.

[00:01:36] Speaker 03:
And then talking about a case with an extraordinary set of facts under the standards where the judge makes a decision that is unreasonable or arbitrary and contrary to what we argue is foreseeable prejudice.

[00:01:52] Speaker 03:
and very clear miscarriage of justice.

[00:01:54] Speaker 03:
But short of a new trial, of course, the panel should either grant the judgment to the appellant on remand on his avoidance claims or... Just to be real clear, in terms of the continuance, is the argument that the judge got the standard wrong or he misapplied it and there were not facts to support it?

[00:02:16] Speaker 00:
Did he consider the right factors at least?

[00:02:17] Speaker 03:
He considered the Flint factors, Your Honor.

[00:02:19] Speaker 03:
So he did consider the right factors.

[00:02:22] Speaker 03:
He just, in a pretty extraordinary case, really emphasized the wrong factors.

[00:02:29] Speaker 00:
Is that clear error or something else?

[00:02:33] Speaker 03:
Well, it's abuse of discretion is the standard for denial of the motion to continue.

[00:02:39] Speaker 00:
That's the standard across the whole board.

[00:02:41] Speaker 00:
Okay, but if you take that, you know, the first level is did he apply the right standard?

[00:02:45] Speaker 00:
The second is was the conclusion irrational and plausible or without support in the record?

[00:02:52] Speaker 00:
So that kind of sounds like you end up in almost something that's clear error if you're getting down to that.

[00:02:56] Speaker 00:
So are those factual determinations for which it has to be clear or is it something else?

[00:03:00] Speaker 03:
Your Honor, I will tell you that the Flint case, where the standard come from, does not make that distinction between applying the right law and then getting into clear error.

[00:03:12] Speaker 00:
Well, you certainly understand that when we get to that second level, it's implausible or otherwise without support, irrational, implausible, or otherwise without support in the record, right?

[00:03:20] Speaker 00:
So that's what you have to argue.

[00:03:22] Speaker 03:
Right, Your Honor.

[00:03:22] Speaker 03:
But what I want to say is that there's case law out there that's more narrow, less general than that principle that the Ninth Circuit has applied to motions to continue.

[00:03:33] Speaker 03:
And that's in that Flint case.

[00:03:35] Speaker 03:
So it's basically taken those factors, you know, kind of mushy factors, and said, abuse of discretion here.

[00:03:42] Speaker 03:
It hasn't really, in the case law, doesn't split it in that way that you might split it for a different type of... Exactly what Henson says, isn't it?

[00:03:50] Speaker 00:
That's two levels?

[00:03:51] Speaker 00:
Right.

[00:03:51] Speaker 03:
I mean, but I'm trying to answer the court's question the best I can.

[00:03:55] Speaker 03:
But I think what's important here is that we, in this particular case, it's very fortunate, we have a case that's directly on point here that the panel can use to use as a lens to understand this case.

[00:04:10] Speaker 03:
And that's the 2.61 acres of land, US versus 2.61 acres of land case.

[00:04:17] Speaker 03:
And that's what I really want to

[00:04:18] Speaker 03:
highlight for the panel.

[00:04:21] Speaker 03:
In that case, the court ordered a new trial in the case of a denial of a motion to continue without hesitation.

[00:04:29] Speaker 03:
And that's a case where the abuse of discretion, based on how the court rolled through those factors, because it's about the emphasis of the factors, not necessarily the clear error of how it decided then,

[00:04:41] Speaker 03:
That's how 2.61 acres analyzed it.

[00:04:46] Speaker 03:
And in that case, the abuse of discretion was far less.

[00:04:51] Speaker 03:
In that case, they found it was arbitrary and unreasonable.

[00:04:55] Speaker 03:
That's what they were looking for.

[00:04:57] Speaker 03:
So they analyzed the four factors in 2.61 acres.

[00:05:00] Speaker 03:
And the court's holding there was the usefulness factor.

[00:05:04] Speaker 03:
So there are four factors.

[00:05:06] Speaker 03:
The usefulness factor is the second one.

[00:05:08] Speaker 03:
So you've got diligence, usefulness, etc.

[00:05:11] Speaker 03:
You've read the brief.

[00:05:13] Speaker 03:
2.61 acres said,

[00:05:15] Speaker 03:
it was arbitrary unreasonable for the judge to pick the wrong factor and go under that factor.

[00:05:21] Speaker 03:
So there, there was no evidence or the court found that there wasn't evidence of diligence.

[00:05:28] Speaker 03:
So their person wasn't diligent.

[00:05:30] Speaker 03:
But the court highlighted that the usefulness factor in that particular case where there was going to be real prejudice to the appellant, that was the most important factor.

[00:05:42] Speaker 03:
And because the judge

[00:05:43] Speaker 03:
the trial court judge went off on the other factors that were less important, that's why it was unreasonable.

[00:05:49] Speaker 03:
And that's just like what happened in this case.

[00:05:52] Speaker 03:
So in 2.61 acres, they found usefulness was the most important.

[00:05:58] Speaker 03:
Here, the trial court improperly found that the first and third factors, so diligence and inconvenience to the defendant, in that case, that was what was most compelling.

[00:06:10] Speaker 03:
But in fact,

[00:06:12] Speaker 03:
Here, just like in 2.61 acres, the usefulness to the appellant should be incredibly obvious.

[00:06:20] Speaker 03:
The fact that an autistic man can't have bankruptcy counsel in a complex case, that would be extremely and incredibly useful.

[00:06:31] Speaker 03:
And in terms of prejudice, that fourth factor, so the second and fourth factor, it should be incredibly obvious.

[00:06:38] Speaker 03:
what the actual prejudice was to the appellate in this matter, we can see- The actual prejudice.

[00:06:45] Speaker 03:
Your Honor, Judge Baker, it is multiple levels.

[00:06:50] Speaker 03:
So internally, because he didn't have an attorney, he couldn't put on his key witnesses because he didn't know how to subpoena and do- Who were the key witnesses that were not- His valuation expert.

[00:07:03] Speaker 03:
was a very key witness.

[00:07:05] Speaker 03:
Just like in 2.61 acres, the thing that the court held onto there was that the damage was the difference between $85,000 and $120,000 or something like that.

[00:07:17] Speaker 03:
And the court said, well, that's enough damage that the court should have focused on that and not this other factor.

[00:07:23] Speaker 03:
Here, the difference between the valuation would be $850,000 and maybe $1.2 million.

[00:07:29] Speaker 03:
had he been able to get his witness subpoenaed and testified to that, but that information wasn't from the court.

[00:07:35] Speaker 03:
So he wasn't able to get his witnesses on.

[00:07:38] Speaker 02:
How was that valuation?

[00:07:39] Speaker 02:
Because the court did not really rely upon valuation.

[00:07:42] Speaker 02:
I'm sorry, Judge Baker, I didn't hear you.

[00:07:44] Speaker 02:
I understood that the court really did not rely upon valuation.

[00:07:48] Speaker 02:
It accepted

[00:07:51] Speaker 02:
Mr. Cattell's argument that there was a partnership and that needed to be dissolved and then made his rulings on that.

[00:07:58] Speaker 03:
The court did not rely on the valuation explicitly because Mr. Cattell couldn't argue, he's not an attorney, why that valuation was important.

[00:08:08] Speaker 03:
So if yet another part of the damage, Your Honor, is that

[00:08:11] Speaker 03:
he wasn't able to do things like have an attorney to do a pretrial order that would underst — to clarify the scope of the claims.

[00:08:19] Speaker 03:
So, for example, on the — the claim for avoidance, a competent attorney would have gotten a pretrial order and said, okay, the scope of the claim includes the state law of avoidance power.

[00:08:29] Speaker 02:
And also — He was represented by counsel, though, up until July through summary judgment.

[00:08:36] Speaker 02:
I mean, counsel wrote his complaint.

[00:08:41] Speaker 03:
That's correct, Your Honor, but he was not represented for any purpose pre-trial in terms of like a pre-trial order or any of that.

[00:08:48] Speaker 02:
Really, what I hear you saying is that the Oregon state fraudulent conveyance as to the partnership should have been pled.

[00:08:57] Speaker 02:
It was pled.

[00:08:58] Speaker 02:
It was pled.

[00:08:59] Speaker 02:
I didn't see that in the eighth cause of action.

[00:09:03] Speaker 03:
Well, again, in the briefing, I'll briefly explain that our argument is that in the pleading, there are more general, broader allegations of power to avoid transfers.

[00:09:21] Speaker 03:
It would have been if it had an attorney.

[00:09:23] Speaker 03:
This is the damage still trying to answer your question.

[00:09:25] Speaker 02:
I'd have an attorney That's the problem.

[00:09:27] Speaker 02:
I mean he had an attorney and if it's if it's pled there It wasn't pled in the eighth cause of action, which specifically and exclusively references 548 So, I mean well, it's but it is but is pled in

[00:09:40] Speaker 03:
in the allegations surrounding it.

[00:09:43] Speaker 03:
So in other words, it mentions 548, but the language, if you look at the specific language, it doesn't say an only 548.

[00:09:50] Speaker 03:
It says avoidance of transfers and also mentions 548.

[00:09:54] Speaker 03:
That mention of 548 doesn't mean there aren't other types of avoidance.

[00:09:58] Speaker 03:
But in terms of the damage, what I'm saying is that he doesn't have an attorney, he can't

[00:10:04] Speaker 03:
He can't get an attorney to help him scope the claims pre-trial.

[00:10:08] Speaker 03:
He can't have an attorney that even when he puts on evidence that fit the state court avoidance claims, he can't get the attorney to conform the evidence to those.

[00:10:19] Speaker 03:
Evidence was that.

[00:10:20] Speaker 02:
I'm sorry?

[00:10:21] Speaker 02:
I mean, the judge expanded it three times.

[00:10:23] Speaker 02:
His ordinary, it was set for five days, went 15.

[00:10:27] Speaker 02:
Right.

[00:10:28] Speaker 02:
Gave him quite expansive opportunities.

[00:10:32] Speaker 02:
What evidence wasn't presented?

[00:10:34] Speaker 03:
Well, again, Your Honor, one of the key pieces of evidence was the fact that he excluded because the defendant didn't have an attorney, didn't know how to get witnesses.

[00:10:43] Speaker 02:
So he excluded a lot of evidence, but the important part is that— The only—I'm sorry to interrupt, but I thought that the only exclusion that's really discussed in the briefing is the inlimity as to the valuation.

[00:10:56] Speaker 03:
That's one of them, yeah, and there was another witness, but the important one is that one, Your Honor.

[00:11:00] Speaker 03:
But more importantly, I think, again, the other parts of the damage would be that he wasn't able to effectively cross-examine, for example.

[00:11:09] Speaker 03:
He wasn't able to- How do we know that, though?

[00:11:12] Speaker 03:
Well, from the record itself, we show in our brief- He was able to convince the court that there was

[00:11:21] Speaker 02:
a partnership.

[00:11:22] Speaker 02:
He was able to defeat Mystique's claims, affirmative claims.

[00:11:26] Speaker 02:
I mean, there seems like there was some effective

[00:11:29] Speaker 02:
advocacy there?

[00:11:30] Speaker 03:
I don't, well, whatever effectiveness there was in terms of advocacy is extremely minor in the context of the fact that he would need an attorney to put, to get the main thing that he needed, which wasn't just that there was a partnership.

[00:11:46] Speaker 03:
The damage to him and the real prejudice of course, is that not only is there a partnership, but there's a partnership where the real property belongs to that partnership and it has this particular value.

[00:11:57] Speaker 03:
I think that's very important in terms of that on the motion to continue.

[00:12:01] Speaker 03:
So I think what the court really thought that it had cured, whatever damage there was from having an autistic person without a bankruptcy

[00:12:12] Speaker 03:
trial counsel and a complex adversary, the court kind of thought, oh, I cured it by giving him more time.

[00:12:17] Speaker 03:
I cured it by, you know, letting him have argument and that together.

[00:12:22] Speaker 03:
Oh, I cured it this way.

[00:12:24] Speaker 03:
That's completely wrong.

[00:12:25] Speaker 03:
The miscarriage of justice, as it applies to the motion for a mistrial, is not cured by any of those things.

[00:12:34] Speaker 00:
I'd like to reserve my — I'll point out, you're just within — you're right under your three minutes.

[00:12:36] Speaker 00:
I was going to reserve — Now, it's up to you.

[00:12:38] Speaker 00:
Totally up to you.

[00:12:38] Speaker 00:
You can keep going if you want.

[00:12:40] Speaker 00:
No, I'm in reserve.

[00:12:41] Speaker 00:
Okay.

[00:12:41] Speaker 00:
Thank you.

[00:12:46] Speaker 01:
Good morning, and may it please the Court.

[00:12:48] Speaker 01:
I'm Stephen Reher, appearing on behalf of the appellees.

[00:12:51] Speaker 01:
I represent Appellee Victoria Deeks.

[00:12:54] Speaker 00:
You're fading out a bit.

[00:12:56] Speaker 00:
If you can get closer to a mic or otherwise, become more audible.

[00:13:01] Speaker 00:
By the way, I see two counsel on the screens.

[00:13:03] Speaker 00:
Are you guys divvying up the 15 minutes here?

[00:13:06] Speaker 01:
We are not.

[00:13:07] Speaker 01:
I was just about to acknowledge and thank Gene Sinnott and James Mills, their counsel for appellees, Garrett Welsh.

[00:13:17] Speaker 00:
You know, counsel, you're barely audible.

[00:13:19] Speaker 00:
I don't know what you can do to make it better.

[00:13:24] Speaker 00:
That's a little better.

[00:13:25] Speaker 01:
I'm sorry.

[00:13:26] Speaker 01:
I've done some testing yesterday.

[00:13:28] Speaker 00:
That's better.

[00:13:28] Speaker 00:
That's better.

[00:13:29] Speaker 00:
Maybe just get closer to the microphone.

[00:13:31] Speaker 01:
Okay, I had this problem last time, and it seems like this part is the only place where I have this problem.

[00:13:38] Speaker 01:
I would like to thank Gene Sinnott and James Mills, who are counsel for appellees Garrett Welch and Connor Deeks, and who are responsible for significant portions of the appellee's joint brief.

[00:13:49] Speaker 01:
The debtor here alleges nine errors by the bankruptcy court.

[00:13:55] Speaker 01:
I think it's helpful I, in preparing for this case, have sorted them into three categories.

[00:14:01] Speaker 01:
First being scheduling decisions, second being evidentiary, and the third category being sort of three of the more substantive rulings in the case.

[00:14:11] Speaker 01:
I don't think I have to spend much time on the first two categories.

[00:14:15] Speaker 01:
The scheduling decisions, there were three debtors motions that were denied and one defendants moved for a one day extension and that was granted.

[00:14:27] Speaker 01:
All three of these debtors scheduling motions that were denied were filed by Council and all implicate the Bankruptcy Court's power to control its calendar under the subject very deferential review.

[00:14:40] Speaker 01:
The debtor argues that it was unfair to deny his scheduling motions while granting the defendant's extension

[00:14:46] Speaker 01:
I would say that overlooks the nature of those motions.

[00:14:50] Speaker 01:
The debtor was seeking to delay the trial while defendants sought a one day extension that did not delay the trial.

[00:14:59] Speaker 01:
As the panel has noted, this trial date was set after the case had been pending for some months.

[00:15:09] Speaker 01:
The trial date was set 10 months before the trial commenced.

[00:15:13] Speaker 01:
And again, it was originally scheduled as a five-day trial.

[00:15:16] Speaker 01:
It extended to 15 days.

[00:15:18] Speaker 01:
And at the conclusion of evidence, the court gave parties, including the debtor, 47 days to prepare for a closing argument.

[00:15:27] Speaker 01:
So I think in terms of the scheduling issues, the debtor had plenty of time, and his burden on appeal is to show prejudice.

[00:15:38] Speaker 01:
In other words, that there is a reasonable probability that the outcome would have been different had the continuance been allowed.

[00:15:46] Speaker 01:
Appellant says in his brief that it's impossible to ascertain whether the outcome would have been different.

[00:15:52] Speaker 01:
That's the reply brief at page nine.

[00:15:55] Speaker 01:
And I'm sympathetic to the fact that we can't go back in time and say with certainty

[00:15:59] Speaker 01:
what would have happened.

[00:16:00] Speaker 01:
But it is the debtor's burden to show a reasonable probability by pointing to specific evidence that would have been introduced and that would have changed the outcome.

[00:16:11] Speaker 01:
Moving on to the evidentiary rulings.

[00:16:12] Speaker 02:
Council, isn't it really when you boil it all down, it would appear to be a combination of

[00:16:23] Speaker 02:
as they alleged the valuation testimony going to what they frame now as the fraudulent transfer within the partnership without his consent.

[00:16:36] Speaker 02:
That is the crux of really the claim that is sought to be renewed, isn't it?

[00:16:46] Speaker 01:
I believe so, and I think that fraudulent transfer issue, I think, fails for two reasons.

[00:16:54] Speaker 01:
One of which, as the court has already identified, this was not a fraudulent, an avoidance claim under the Oregon Partnership Act was not pled in the complaint.

[00:17:05] Speaker 01:
That complaint that relies on case law favoring liberal construction of pro-state pleadings, the second amendment of the complaint was drafted and filed by counsel.

[00:17:15] Speaker 02:
Do you agree that there's reference in other parts, I'm guessing, into factual discussion as to the basis for the Oregon statute?

[00:17:27] Speaker 01:
I do not, and I don't think it was the trial court's job to search beyond the four corners of the complaint for alternative theories.

[00:17:35] Speaker 01:
But even setting that aside, the defendants in our brief have gone to the merits and discussed this.

[00:17:45] Speaker 01:
Any avoidance claim under the Partnership Act would have belonged to the partnership.

[00:17:50] Speaker 01:
not the debtor as an individual.

[00:17:53] Speaker 01:
And I would like to take this opportunity to briefly respond to debtor's reply brief.

[00:17:58] Speaker 01:
In this argument, he cites two Oregon statutes.

[00:18:02] Speaker 01:
I don't believe either is applicable.

[00:18:04] Speaker 01:
He cites statute 67.090.

[00:18:07] Speaker 01:
That allows a partner to act as an agent of the partnership

[00:18:11] Speaker 01:
for purposes of carrying on ordinary course business.

[00:18:14] Speaker 01:
Prosecution of an avoidance claim is not an ordinary course transaction.

[00:18:18] Speaker 01:
Rather, that is governed by a different part of the Partnership Act 67-110, which says a claim by the partnership has to be prosecuted in the name of the partnership, and that didn't happen.

[00:18:30] Speaker 01:
Detter also cites ORS Chapter 70.

[00:18:33] Speaker 01:
That's a statute governing limited partnerships, and there's nothing in the record indicating this was a limited partnership, so I don't believe that's relevant.

[00:18:42] Speaker 01:
Um, the, um, uh, second category I've used is the evidentiary rulings.

[00:18:49] Speaker 01:
I don't think I have to spend much time on that at all.

[00:18:52] Speaker 01:
This is denial of a motion for protective order and granting of Victoria Dietz's motion in Lemony.

[00:18:58] Speaker 01:
Um, again, they're, uh, the

[00:19:01] Speaker 01:
There's the burden of showing that any error was harmless was not harmless, rather, and there is no prejudice here in terms of the protective order debtor sought to avoid sitting for a deposition.

[00:19:14] Speaker 01:
He admits that the deposition was played no role in the court's decision, but that having to sit for the deposition was prejudicial.

[00:19:23] Speaker 01:
I would say that having to participate in litigation that one initiates cannot be prejudicial in the legal sense.

[00:19:30] Speaker 01:
And again, on the motion in Lemony, that was valuation evidence that played no role in the court's decision.

[00:19:37] Speaker 01:
The third category is sort of a catch-all, the substantive rulings, the fraudulent transfer claim I've already discussed.

[00:19:47] Speaker 01:
I think the real meat of the appeal is debtors' challenge to the

[00:19:53] Speaker 01:
bankruptcy court's finding that he was not a vulnerable person for purposes of Oregon's financial abuse statute.

[00:20:00] Speaker 01:
And again, I would emphasize the standard of review here.

[00:20:06] Speaker 01:
The trial court heard the testimony of the debtor and the debtor's expert witness.

[00:20:12] Speaker 01:
It then weighed that testimony in light of other conflicting evidence, including a report admitted in evidence from a different doctor who did not diagnose the debtor with autism.

[00:20:23] Speaker 01:
And finally, the court correctly applied the Oregon statutory language to determine that Dead Earth's autism did not qualify him as a financially vulnerable person.

[00:20:33] Speaker 01:
Again, a few new issues were raised in the reply brief that I would like to discuss.

[00:20:42] Speaker 01:
Several times, I think four or five times in the reply, debtor's counsel claims that his client's vulnerability is apparent in the fact that he gave away property.

[00:20:50] Speaker 01:
And I would take issue with that characterization.

[00:20:53] Speaker 01:
There was not a gratuitous transfer here.

[00:20:56] Speaker 01:
The debtor contributed his property to a partnership in exchange for an interest in that partnership.

[00:21:01] Speaker 01:
The fact that the partnership was not profitable at the end of the day does not mean that the debtor gave away his property for no consideration due to manipulation.

[00:21:15] Speaker 01:
Another issue in the Kelly's brief, the appellee's note that the debtor's expert did not provide testimony concerning how his autism impaired his ability to work.

[00:21:28] Speaker 01:
In the reply brief,

[00:21:29] Speaker 01:
I think it's very interesting.

[00:21:31] Speaker 01:
If you look at page 17 of the reply brief, Detter responds by quoting several passages of his expert's testimony concerning autistic people's difficulties in social situations.

[00:21:42] Speaker 01:
The quote then ends,

[00:21:45] Speaker 01:
And council states, certainly these qualities would make it very difficult to engage in substantially all the ordinary duties of a great many occupations.

[00:21:53] Speaker 01:
That's the end of the council's argument.

[00:21:56] Speaker 01:
Those were not words of the witness testifying for the bankruptcy court.

[00:22:01] Speaker 01:
And I don't think that provides the basis for a finding of abusive discretion.

[00:22:10] Speaker 01:
Elsewhere in the reply brief, Dettor criticizes the trial court for not connecting the dots, and I don't think it's an abuse of discretion for a trial court to decline the invitation to draw an inference.

[00:22:21] Speaker 01:
So I don't think that's an abuse of discretion.

[00:22:22] Speaker 01:
Again, we have the standard is illogical, implausible, or unsupported by the record.

[00:22:30] Speaker 01:
I think most parties that lose a trial court believe some rulings are unfair, but that's not part of the standard.

[00:22:40] Speaker 01:
I think I would conclude by addressing two issues that debtors council raised during this oral argument.

[00:22:50] Speaker 01:
The first is the role of withdrawal of debtors council, and I would point to, I have the excerpt of record in front of me.

[00:23:05] Speaker 01:
The actual motion to withdraw is at 931 of the excerpt of record, and 931

[00:23:19] Speaker 01:
Referencing a declaration from Withdrawing Council says that the debtor consented to his withdrawal and will continue to be represented by Mr. Carrison and Mr. Childs.

[00:23:34] Speaker 01:
I read that as saying the debtor is seeking a certain relief, withdrawal of counsel, in part because he still had counsel participating.

[00:23:46] Speaker 01:
That argument prevailed.

[00:23:49] Speaker 01:
The court granted the request of relief.

[00:23:52] Speaker 01:
And Dettor is now taking a contrary position to gain the benefit of reversal on appeal.

[00:23:59] Speaker 01:
I think those are the elements of judicial estoppel, and Dettor cannot argue now that it was unfair to allow this Council to withdraw.

[00:24:09] Speaker 01:
regarding 2.61 acres of land.

[00:24:14] Speaker 01:
My hazy recollection of that case from when we were working on the briefs is that that involved a new issue of law that was raised on the eve of trial, and there was a quick and easy resolution.

[00:24:26] Speaker 01:
I think that there was funds ready to make a payment that would have changed things, and the court denied that.

[00:24:34] Speaker 01:
That is

[00:24:35] Speaker 01:
different from this case where again there was a trial had been set for months and debtor sought to delay it because he wanted new counsel in a civil case where there is not right to counsel.

[00:24:52] Speaker 01:
Even in the criminal context where there is a constitutional right to counsel, Ninth Circuit law recognizes that if the defendant wants to change counsel on the eve of trial, that right to counsel has to be balanced with the trial court's ability to manage its calendar.

[00:25:07] Speaker 01:
I think if that's true in the criminal context, certainly the court's decision here to go forward with trial two years after the case was filed was reasonable.

[00:25:17] Speaker 01:
I would be happy to answer any questions from the court.

[00:25:22] Speaker 00:
Otherwise, that concludes my arguments.

[00:25:48] Speaker 03:
Okay, all right.

[00:25:50] Speaker 03:
May it please the court once again.

[00:25:51] Speaker 03:
I'm just going to want to address a few points.

[00:25:55] Speaker 03:
First of all, I want to make very clear, we did on a brief, that the fact of a 15-day trial that happened here

[00:26:03] Speaker 03:
That's not evidence that the court did something to cure.

[00:26:05] Speaker 03:
That's evidence that the court did something to abuse this discretion.

[00:26:08] Speaker 03:
It should have never happened, and it would not have happened, but for that denial of the motion to continue.

[00:26:14] Speaker 03:
I want to also point out that the defendant in this case, and this adds insult to injury, why a new trial is certainly warranted here.

[00:26:22] Speaker 03:
The defendant did not want to change his counsel.

[00:26:25] Speaker 03:
His counsel mandatorily withdrew because he arguably committed an ethical violation because he blew a discovery deadline.

[00:26:34] Speaker 03:
And the trial was set for many, many months in December.

[00:26:38] Speaker 03:
And for an appellate that is in Eugene, Oregon, where finding bankruptcy trial counsel

[00:26:48] Speaker 03:
is not the easiest thing to do, and he found four, and he had one ready to go on the morning.

[00:26:53] Speaker 03:
But the other denials in the motions, I just quickly hit on all the other motions we had, is part of a pattern I think that's really important for the panel to understand.

[00:27:02] Speaker 03:
It's inherent.

[00:27:03] Speaker 03:
It boils down to this.

[00:27:05] Speaker 03:
Autism doesn't matter.

[00:27:06] Speaker 03:
An autistic man does not need an attorney in a complex, bankruptcy, ivory proceeding.

[00:27:11] Speaker 03:
Let's just get it on.

[00:27:13] Speaker 03:
That simply cannot be the right outcome.

[00:27:15] Speaker 03:
Not under 2.61 acres, not under Flint, not under Passantino for mistrial, it just can't be.

[00:27:23] Speaker 03:
So following that rubric where the court de-emphasized that factor in the motion to continue, that's against what the knife circuit said in 2.61 acres.

[00:27:34] Speaker 03:
Lastly, to ask your judge's questions, I did a little bit more on that.

[00:27:38] Speaker 03:
In the eighth claim, there are both references in that same claim to more broad series of transactions that have avoidable transfers.

[00:27:49] Speaker 03:
That's in paragraph 124.

[00:27:51] Speaker 03:
And in paragraph 126, we talk generally about equitable avoiding of the transfers.

[00:27:56] Speaker 03:
Both of those things point to

[00:27:59] Speaker 03:
state law.

[00:27:59] Speaker 03:
It doesn't call out 67095 specifically, but it's broad enough to encompass those.

[00:28:06] Speaker 03:
And lastly, I don't know what the — I have been having trouble hearing, but I heard some sort of a stopple argument.

[00:28:13] Speaker 03:
That was never raised at any point before this.

[00:28:16] Speaker 03:
I think it's waived.

[00:28:18] Speaker 00:
Mr. Brann.

[00:28:20] Speaker 00:
Thank you.

[00:28:20] Speaker 00:
Mr. Breaker.

[00:28:20] Speaker 00:
Thank you, Your Honors.

[00:28:21] Speaker 00:
Thank you.

[00:28:22] Speaker 00:
Okay, the matter's submitted, and we'll do our best to get you a written decision as soon as we can.

[00:28:27] Speaker 00:
Thanks for your good arguments.