[00:00:00] Speaker 00:
In re Gilliam, Edward Gilliam, appellant in pro se, Lane K. Bogard, counsel for Appley, Barbara White.

[00:00:11] Speaker 00:
Oh, I'm sorry. I made an error here. Richard J. Radcliffe, counsel for appellant Edward Gilliam.

[00:00:26] Speaker 06:
Morning, Your Honors. Richard Radcliffe on behalf of Appellant Edward Gilliam. I'd like to reserve five minutes for rebuttal, please.

[00:00:33] Speaker 04:
Okay. Thank you.

[00:00:34] Speaker 06:
I'd like to make three clarifying comments, and then I'm going to get right to Your Honors' questions and the prefatory remarks.

[00:00:42] Speaker 06:
First is, this is an appeal that has a singular issue or question that can resolve it.

[00:00:49] Speaker 06:
Secondly, there is a singular document the court can consult to answer that question.

[00:00:55] Speaker 06:
And third, at the end, we're going to make a singular narrow request for relief as a result of that.

[00:01:01] Speaker 05:
Can we start with the third one?

[00:01:03] Speaker 06:
Yes.

[00:01:05] Speaker 06:
The relief is actually narrow, but the court will find it on page 30 of Mr. Gilliam's reply brief.

[00:01:10] Speaker 05:
There's a lot of paper that's been submitted. Why don't you just go ahead and tell us what that is?

[00:01:14] Speaker 06:
I'm going to tell you exactly what that relief is. It's very narrow. We want the court to reverse the order of September 29, 25, and remand for the court to apply the proper legal test.

[00:01:29] Speaker 06:
And that goes back to what was the error of the court?

[00:01:34] Speaker 06:
The error was not to apply the proper legal test for contempt.

[00:01:40] Speaker 06:
That is, as the Supreme Court articulated in the Taggart case in 2019, an objective test.

[00:01:48] Speaker 06:
Unfortunately, if you go through the order while the court referenced Taggart, It is replete with references.

[00:01:57] Speaker 05:
I think I'm very appreciative that you only got now 13 and a half minutes and you want to save time. It's going to be necessary, I think, to break this down pretty granular, given the matters that are before us. And my understanding is there's a furniture claim, loan claim, the settlement claim. The settlement claim really is derived of the furniture and the loan claim. So we'll get to that. Let's take the furniture claim first, because looking, working through all of this, The court seems to have said that claim arose post-2017 and probably in 2023.

[00:02:29] Speaker 05:
If that's true, there's no discharge. There's no claim. There's no problem with that, regardless of what Ms. White may have known or not. Discharge it.

[00:02:39] Speaker 05:
Why is that error?

[00:02:42] Speaker 06:
The error was with respect to I want to focus on the loan because if I... No, no, the furniture claim.

[00:02:48] Speaker 05:
Because if the furniture claim goes forward and it was never discharged, that existed in the settlement form at some point in time. And say what you will about the settlement and the loan claim, which we'll get to in a second. But that was not discharged. That's a claim that was properly proceeding, wasn't it?

[00:03:11] Speaker 05:
So let's focus on – go back to the question.

[00:03:14] Speaker 05:
Why was it error for the court to find that the claim most likely arose post-2017 and therefore was never subject to a bankruptcy discharge of Mr. Gilliam?

[00:03:25] Speaker 06:
I want to answer your question directly, but that's not – The basis of our argument today, but the the order on page six, which is page thirteen in the excerpts of record, the court said that there was no evidence that Mr Gilliam converted.

[00:03:45] Speaker 05:
That's the substance. We've got to stay away from the substance because that's not before us on the discharge violation. She made a claim that he wouldn't give her her stuff and she wants to value it. That seems to be conversion of what the court found. They found it arose in 2023 likely, certainly after 2017.

[00:04:05] Speaker 05:
I'm not really hearing any – I haven't seen really any argument as to why that was unsupported.

[00:04:12] Speaker 06:
And that's not the focus of my argument. I still think that the court's error exists independently of the... It doesn't matter if it's not subject to a discharge.

[00:04:21] Speaker 05:
We never get to the examination of the violation of the discharge because there is no discharge. So we probably should move to the loan claim then because I assume that's the bulk of your argument.

[00:04:32] Speaker 06:
That's the locus of the argument, yes. Okay. Because...

[00:04:38] Speaker 02:
Under the proper legal standard, the court— Is it the objective evidence problem that is subjective versus objective? Is that what you're going to— Absolutely.

[00:04:52] Speaker 06:
This is the focus of my argument. This is a purely legal issue. So the court asks two questions. What is the mistake or error? Is this a factual legal question? The answer is the error is the court did not apply the proper legal test under Taggart, which is an objective test. And the order is replete with references to wilfulness and a subjective belief.

[00:05:18] Speaker 06:
And so with respect to the loan, that's sufficient, I think, for the court to reverse and say, apply the proper legal test.

[00:05:27] Speaker 05:
As to what? As to the loan. Right. So when did the loan arise?

[00:05:32] Speaker 06:
I'm glad you asked that question.

[00:05:35] Speaker 06:
On page 26 of the excerpts of the record, we have an admission from the alleged creditor, Ms. White. She's writing a letter to the U.S. trustee. Was that admitted? It was in the record.

[00:05:49] Speaker 05:
Was it admitted?

[00:05:51] Speaker 05:
I'm not sure.

[00:05:54] Speaker 05:
Can you tell me what exhibits were admitted at the evidentiary hearing?

[00:05:57] Speaker 06:
I'm sorry, I don't have that. But in the record here, I have The document, which I understand was submitted prior to the hearing in September of 25, was the admission from the alleged creditor saying the loan on which she sued in 2023 arose or the loan was made to Mr. Gilliam in July of 2008.

[00:06:24] Speaker 06:
And as the court said, there were two discharges.

[00:06:28] Speaker 06:
2009 2017 in favor of mr. Gilliam So as to the loan, what was when was that admitted in when was that presented to the court?

[00:06:41] Speaker 05:
I? Believe it is Document 191 what date was it after the evidence you're hearing?

[00:06:50] Speaker 06:
I'm not sure that would be a big big point though, right with that particular document There were other There were other indicia of when the loan arose.

[00:07:02] Speaker 02:
But there was also admissions by your client.

[00:07:04] Speaker 06:
Including a statement, yes.

[00:07:05] Speaker 02:
By your client and his attorney that the loan actually arose in 2009, which would put a post the discharge in 2008. So that would mean that the discharge in 2017 would be the only applicable discharge that could possibly apply to this debt. And so we're back to the point of, is it a factual question that the judge determined that her credibility suggested that she was unaware of the discharge and unaware that it applied to her debt that she was pursuing.

[00:07:40] Speaker 02:
And my question to you is, if she's pursuing a settlement claim, not in her mind, a litigation over the amount that he owes her, but she's pursuing a settlement that the mother engaged in and that he was also, I guess, responsible for.

[00:08:02] Speaker 02:
Is that the same in her mind, objectively, as the original underlying obligation was?

[00:08:11] Speaker 06:
A few things that I'd like to respond to, and if I don't, please follow up. I think Your Honor is referring to the hearing on June 3, 2025, and there was a comment made by Mr. Gilliam's counsel at the time that seemed to indicate that he was admitting it was post the first discharge, not the second discharge. Right. And within seven days of that, Mr. Gilliam filed a document, which is document 206 on 6-10-25, to correct that.

[00:08:41] Speaker 06:
So that was in the record before the September hearing.

[00:08:45] Speaker 02:
But the problem is that there was conflicting evidence by Mr. Gilliam on that question, and the judge resolved it in favor of Ms. White, and that is he found, ultimately, that it wasn't a pre-petition obligation as to the 2008 discharge.

[00:09:01] Speaker 02:
Why is that legally wrong?

[00:09:05] Speaker 02:
I mean, it's based on disputed evidence. Either one of them could be correct. You're arguing that this is the ultimate position he took, but the judge decided not to go.

[00:09:15] Speaker 05:
And don't you have a clear and convincing standard to meet?

[00:09:19] Speaker 06:
Glad you brought that up, Your Honor.

[00:09:20] Speaker 05:
Well, I need you to answer Judge Gans, but I just want to make sure the bar is set at the right level.

[00:09:29] Speaker 06:
I think at the hearing on June 3, the judge made comments which the alleged creditor was present for. And he was warning her, this appears to be in violation. And she continued acts after that hearing, but before the September hearing in, I believe, August of 25 in the state court.

[00:09:49] Speaker 06:
So that's subjective knowledge, although I don't believe that's the test.

[00:09:53] Speaker 05:
I need to get back to Judge Gant's question about why is that error as to the timing of the loan, which your client, through counsel at that hearing, said was January, and we're also overlooking the fact that your client filed three Amendments that schedules that said that that debt arose in 2009 Why why does one beat the other is really what we're asking or why was it a mistake to conclude?

[00:10:21] Speaker 06:
On a clear and convincing basis I Want to address because I think judge breaker you brought up a point that's highly relevant here is in the courts order I was talking about setting the bar and on page uh 11 in the record it's page four of the order the court said that um under taggart the debtor must prove by clear and convincing evidence and then went on to talk about two elements which appear to be subjective not objective tests and i read taggart and i did not see clear and convincing evidence standard stated anywhere in there um and that's part of my problem and this is a Again, to Judge Lafferty's question, our issue is this is a legal question because the judge did not apply the right standard.

[00:11:14] Speaker 05:
I still need a factual answer as to when Ms. White knew of the 2017 discharge.

[00:11:26] Speaker 06:
Well, the judge said to her on 6-3-25, the transcript indicates you're violating the

[00:11:34] Speaker 05:
Discharge by pursuing the state court action which one Because again going back to my first questions it appears from The judges conclusion that the furniture claim did not arise until 2023. It could not violate the discharge and That was part of the settlement action, correct He said that I mean you can't wreck.

[00:11:58] Speaker 06:
Can you reconcile those two? I?

[00:12:00] Speaker 06:
When you're referring to the settlement action, are you referring to Maxine Gilliam's oral statement?

[00:12:06] Speaker 05:
No, no. The suit against both Mr. Gilliam and his mother for the alleged $35,000 settlement based upon presumably the dismissal of the furniture claim and the action and the loan action.

[00:12:24] Speaker 06:
Maybe you can rephrase the question.

[00:12:26] Speaker 02:
So why, again, why would a reasonable person conclude that when I'm pursuing a claim against the mother and the son on a settlement, that that is the equivalent of me violating the stay with regard to, I'm sorry, the discharge with regard to the 2017 action on the loan, which I'm not pursuing any further.

[00:12:50] Speaker 02:
Tell me why you think the evidence suggests this isn't a factual resolution, but this is a clearly application of the wrong legal standard. When she is not pursuing the loan claim, she's pursuing the settlement claim in her mind.

[00:13:08] Speaker 06:
I think it's her knowledge has to be looked at in view of the June 3, 25 warning from the court and also her letter, which I understand is the loan claim, but our position from the papers was that those were derivative of an underlying alleged debt of Mr. Gilliam, not an independent debt.

[00:13:29] Speaker 02:
So Maxine, the mother, didn't have any obligation to Ms. White.

[00:13:34] Speaker 06:
Right.

[00:13:35] Speaker 02:
But she did when she contracted with her to indemnify or to take on responsibility for that obligation. Right. Why isn't it in her mind different, the debtor's mind different, than the pursuit of the original claim as a matter of fact rather than of law?

[00:13:52] Speaker 06:
Because the judge said on June 3, 25, with Ms. White present, that there was no claim, no basis for the claim against Maxine. Because it was an oral, gratuitous promise. There was no consideration.

[00:14:07] Speaker 03:
Just a quick. point you're you're at about a minute you want to stop now and have a minute to rebut yes okay thank you thank you okay go ahead make your appearance thank you good morning and may it please the court lane bogart representing the appellee barbara white

[00:14:34] Speaker 01:
As this court has heard, the order that is currently on appeal is an order declining to sanction. Ms. White and finding that she did not violate the discharge injunction. This order was entered after two hearings considering significant... Can I jump in on yours as well?

[00:14:52] Speaker 05:
Only fair since I jumped in and hijacked opposing counsel.

[00:14:58] Speaker 05:
Do you dispute that pursuit of the loan claim against Mr. Gilliam would violate...

[00:15:07] Speaker 05:
the 2017 discharge.

[00:15:13] Speaker 01:
Your Honor, we don't dispute that the loan claim was subject to the 2017 discharge.

[00:15:23] Speaker 05:
So then it would be a violation, whether or not it was a knowing violation and subject to liability, as we discussed on the stay kind of related matter before, two different questions, but it would violate the stay.

[00:15:40] Speaker 05:
It would violate the discharge injunction.

[00:15:44] Speaker 05:
What does that mean for the settlement claim?

[00:15:48] Speaker 05:
And we can limit it to Mr. Gilliam at the moment, to the extent that that arose from the loan claim.

[00:15:58] Speaker 01:
It's my understanding, Your Honor, that the bankruptcy court essentially found a settlement claim that was brought against the debtor was... in essence, a reaffirmation of the loan claim. Well, it rejected that.

[00:16:10] Speaker 05:
It rejected a reaffirmation. But if the loan claim as the loan claim was discharged, meaning no further liability, pursuit of a settlement that incorporated the loan claim and resulted in dismissal of that action, why isn't that a violation of the stay?

[00:16:33] Speaker 01:
Your Honor, it was not a knowing violation. So I understand the loan claim in pursuit of the settlement would be subject to that second bankruptcy and the second discharge. But it's our position that the bankruptcy court made findings that the debtor did not prove that Ms. White knowingly violated that second discharge when she pursued the settlement claim.

[00:16:57] Speaker 05:
Well, let's define pursued because I think that's true as to the filing of it. And I think the judge in the original order said that there was no notice as to the filing in December 2023 of the loan claim. But it continued, didn't it?

[00:17:15] Speaker 05:
And ultimately, I'm sorry, but ultimately transmogrified into the settlement claim.

[00:17:20] Speaker 02:
So maybe what you could do is address Mr. Radcliffe's argument that when she was warned in June that that if she pursued the settlement claim, it would constitute a violation of the discharge injunction.

[00:17:39] Speaker 02:
She didn't dismiss for several more months why that doesn't constitute at least some pursuit of an action after she is warned.

[00:17:50] Speaker 01:
Yes, Your Honor. If I can answer that in several points. The first is that, well, Ms. White did not learn of that second bankruptcy and the second discharge until June of 2025.

[00:18:02] Speaker 05:
Can I ask, Mr. Gilliam, proceeding pro se, at that time in the reply, is pretty clear that he believes that this...

[00:18:14] Speaker 05:
The request for judicial notice in late April of 2025 that attached the 2017 discharge provided notice because it was served upon Ms. White and essentially Certificate of Service, her attorney. I can't remember if it's you, Ms. Barber. Why wouldn't that have been notice of the 2017 discharge?

[00:18:39] Speaker 01:
I don't think that was, I believe it was that there's, conflicting evidence. So while that may have been one factor, there was testimony at the hearings that Ms. White did not learn of that discharge until June of 2020.

[00:18:54] Speaker 01:
And when considering all of the testimony and the fact that Ms. White's address had been incorrect on multiple documents served to her, the court found that she did not know of the second discharge until after those claims had already been filed.

[00:19:14] Speaker 05:
Did the court actually address the April filing that attached the 2017 discharge?

[00:19:23] Speaker 01:
I don't believe, Your Honor, that was addressed specifically at the hearing, but I do recall the court...

[00:19:30] Speaker 01:
overruling several documents that were submitted after the hearing, which did include a request for judicial notice. I apologize, I don't have the exact documents in front of me that were not admitted. However, it's our position that given all of the testimony and given the fact that the court found that Ms. White did not credibly testify that she did not have knowledge until June 2025, that there was a fair ground of doubt as to whether her pursuing the settlement claim would have violated that second discharge.

[00:20:10] Speaker 05:
Can you walk me through that? Even if somehow the judicial notice attaching the 2017 discharge was excluded or not allowed in a subsequent order, The argument must go then it was mailed. We'll have to check first that it was not mailed to the correct address. That's the argument for both her and her attorney of record at that time.

[00:20:41] Speaker 01:
Yes, Your Honor.

[00:20:42] Speaker 05:
All right.

[00:20:44] Speaker 05:
And then it goes that because the judge found Ms. White's testimony at the evidentiary credible that she didn't learn about until June, that must mean that she did not receive it. That's what you're arguing.

[00:21:01] Speaker 01:
Yes, Your Honor. I think I'm getting a little bit tripped up on the factual timeline here and what precisely we're talking about.

[00:21:09] Speaker 01:
Because I do know that the settlement claim did arise in 2024, as we said in our brief, going back to April of 2024. And the OSC motion was brought to Ms. White's attention in June of 25. And so...

[00:21:30] Speaker 01:
While she may have been pursuing that settlement claim, the court did not find that she had actual knowledge or that there was evidence proving that she had actual knowledge of that second discharge when she was pursuing that claim.

[00:21:44] Speaker 05:
So are you saying that any of the documents filed in the bankruptcy court prior to June 25, Ms. White did not receive and was not aware of, nor was her attorney?

[00:21:56] Speaker 01:
Your Honor, I do not – I cannot say that for sure. I don't have that evidence in front of me to know. I do know that our position is that the court can consider all the evidence that was admitted and based on – What was the evidence that was admitted?

[00:22:11] Speaker 05:
Can you clarify that? Because it seems to be in confusion as to what evidence was actually before the court.

[00:22:16] Speaker 01:
Yes. Yes, Your Honor. It was the – The declarations of the parties, as well as the testimony of Ms. White and the testimony of the debtor and the testimony of several witnesses at the evidentiary hearing.

[00:22:31] Speaker 05:
Would that include the exhibits to the briefing, including the supplemental memorandum after the June hearing?

[00:22:41] Speaker 01:
Your Honor, I apologize. I'm not...

[00:22:43] Speaker 01:
I'm drawing a blank on that supplemental memorandum, but there were additional documents that were submitted by the debtor as well as Ms. White, including the debtor's own schedules as well as the bankruptcy filings, and those documents were before the court.

[00:23:00] Speaker 01:
Okay. And based on all of those documents and, again, the testimony of Ms. White, The court found that there was conflicting evidence. It certainly was not clear, and the debtor did not prove by a clear convincing standard that Ms. White had knowledge of that second discharge and violated that when she pursued the settlement claim.

[00:23:26] Speaker 02:
So maybe you could address one more point, and that is that Mr. Radcliffe just said that Taggart doesn't suggest the standard is clear and convincing evidence of the fact that the discharge had been entered. So what is your legal basis for saying that it has to be by clear and convincing evidence?

[00:23:46] Speaker 01:
Yes, Your Honor. The case law that we cited in Ms. White's brief states It addressed the clear and convincing standard for finding a willful violation of the discharge. I don't recall if TAGR did or didn't address that standard and what the debtor's burden of proof was at the trial court.

[00:24:11] Speaker 01:
But I do know that the case law cited in our brief does show that the correct standard is the debtor must prove by clear and convincing evidence that the that the debtor committed a willful violation. Now then turning to Taggart, Taggart clarified that that's an objective standard. Excuse me.

[00:24:33] Speaker 01:
I do have the case that's cited actually in the debtor brief is Enrique Costa. And it specifically says that the debtor must prove by clear and convincing evidence that the creditor knew of the discharge injunction and intended that her actions violated the injunction. And I understand that Taggart, being the U.S. Supreme Court case, did not overrule that clear and convincing standard. They just simply clarified that it's an objective standard and the court can consider all of the evidence before it.

[00:25:08] Speaker 01:
But the debtor still must prove, must offer that evidence that is so clear and so convincing that the bankruptcy court has no question that the debtor did in fact make that willful violation.

[00:25:21] Speaker 02:
So do you think that the question of whether Ms. White appreciated that pursuing the settlement claim was a pursuit of a discharge claim is a question of fact?

[00:25:38] Speaker 02:
Or do you suggest that it was legally supported in the record?

[00:25:44] Speaker 01:
I believe that's a question of fact, Your Honor, in that whether in her mind that she was violating it is something that the bankruptcy court could factually consider when deciding whether or not there was a fair ground of doubt as to was she violating the discharge when she was taking those actions? And more importantly, did she know of the second bankruptcy and the second discharge when she was pursuing those actions? And due to the conflicting nature of all the evidence, and as the bankruptcy court said, the murkiness of it all.

[00:26:18] Speaker 01:
There just wasn't enough.

[00:26:20] Speaker 05:
Did the judge say that really as to the murkiness of her knowledge of the 2017? Because it seemed like the court was really relying upon her evidentiary testimony, which was pretty clear that she learned about it in June 2025.

[00:26:34] Speaker 01:
Your Honor, I guess the murkiness of it all, I was more referencing to just as a whole before the court and not that specific issue. But there was enough, the point being there was enough presented to show the court that it could not find that the debtor met its clear and convincing burden.

[00:26:53] Speaker 05:
And I agree with that. If you look just at the testimony of Ms. White at the evidentiary hearing, because that's really all that was presented was her testimony. I didn't learn about it in 2025.

[00:27:04] Speaker 05:
If she had received the notice of the discharge in April, that still makes it murky?

[00:27:14] Speaker 01:
No, Your Honor, but I don't recall the exact date. I apologize that the action to pursue the settlement was filed. However, I do know the court made findings that Ms. White was not served with the debtor's second bankruptcy. She was not listed as a creditor. At the time, yes. at the time. And so in, um, there's just simply wasn't any evidence to show that Ms. White had any knowledge before June of 25 of the better second bankruptcy.

[00:27:47] Speaker 01:
Right.

[00:27:48] Speaker 05:
And the record is clear on the transcript of the evidentiary hearing that there was really no discussion of the exhibits previously submitted. Correct.

[00:27:58] Speaker 01:
I believe that's correct. Yeah.

[00:28:02] Speaker 01:
And, um, So with all of that, we would submit that the debtor just simply did not meet his burden. And more importantly, that in the debtor's brief and court arguments today, there's just been nothing to show that the court's conclusions were clear error based on an illogical finding or an improper legal standard. Everything, the correct law was applied and the findings are supported by the record. So thank you.

[00:28:32] Speaker 04:
Thank you very much. All good? Okay. Thank you.

[00:28:35] Speaker 06:
Thank you, Your Honors. I want to begin where she just ended. She said there was no indication that the correct law was not applied and must take issue because if we go look at the court's order, all of those cases that are cited underneath the clear and convincing evidence standard on two subjective factors are all pre-taggart. The court cited on, it's page 11 of the record, page 4 of the order.

[00:29:09] Speaker 06:
Bennett case says willfulness.

[00:29:14] Speaker 06:
The Henry's dialogue, that's 2006 and also dire willful violation. And counsel is echoing that old law by saying, well, in her mind.

[00:29:28] Speaker 02:
And also I want to talk about the... But, counsel, just to clarify, you're not suggesting that the standard isn't clear and convincing evidence, are you? Do you think that Taggart changed the law and that nobody's discovered that since Taggart was decided?

[00:29:43] Speaker 06:
It actually said the Ninth Circuit has the wrong test, and it said...

[00:29:48] Speaker 06:
no fair ground of doubt, which it immediately clarified was objective.

[00:29:52] Speaker 02:
But that was because it was applying a subjective test before that, right?

[00:29:57] Speaker 06:
Pardon me?

[00:29:57] Speaker 02:
That's because Taggart was identifying the Ninth Circuit was applying a subjective test, and they were saying, no, it's an objective test, not that the clear and convincing standard is.

[00:30:06] Speaker 06:
Not necessarily, and I don't have to win that argument. It's clear the court used a subjective test And let me just make this this point because it was relevant in the respondents or the Apple East comments.

[00:30:21] Speaker 06:
The credibility determinations, the court made a lot of credibility determinations, totally irrelevant to an objective test. That's why you can tell he applied the wrong standard. And so then I just want to get to the legal standard here. We're arguing because we're arguing simply that the wrong legal test was applied. To this contempt motion, that is a purely de novo review, and the authority for that is U. S. V. Hickson five eighty five have third twelve forty seven pinpoint site twelve sixty one and sixty two.

[00:30:54] Speaker 06:
It's a twenty or nine nine circuit case. So that's what I believe is our burden on this narrow presentation, which is just look at the order, put next to Taggart. They can't be represented.

[00:31:05] Speaker 04:
We're about a minute over. Anybody have any more questions? Okay. Matters submitted. Thank you very much. Thank you very much. Appreciate your time. We'll get you a written decision as soon as we can. Thank you.

[00:31:14] Speaker 02:
Thank you, Ms.

[00:31:15] Speaker 04:
Wood. Okay.