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View Comments. Login to Comment or create an account Email. Login Forgot your password? Create an Account or login First Name. Last Name. Display Name. More in Opinion. Opinion The heroes of Stonewall were trans people who deserve protection and respect. Opinion The moral quandary of selling beds to child detention centers. Business Texas real estate legend Herb Weitzman isn't ready to write off retail building for the internet. Life What's a crepe taco? Appeal to the Fifth Circuit Both parties appealed to the Fifth Circuit, which rendered its decision on September 20, The Court spent most of its opinion explaining why Trustee Ingalls was not entitled to more relief than he received below.
The Court of Appeals acknowledged that the burden of proof for tracing assets into a self-settled trust was res nova in Texas.
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However, based upon general principles of trust law, the Court ruled that the party seeking to recover trust assets had the burden of proof to both trace assets into the trust and to prove that those assets or their proceeds remained within the trust. The Court of Appeals declined to assign any burden of proof to the trust. The first was that where assets could be traced into the trust, but their provenance remained uncertain, that the trust could retain these assets.
Second, where self-settled assets could be traced into the trust, but had been sold or dissipated such that their current form could not be determined, that the trust would not be held liable for these assets which had passed through it. Presumably, the result could have been different in a case where the transferee was less cooperative.
The Court of Appeals agreed with Judge Monroe that Texas courts have not recognized the concept of sham or illusory trust except in cases involving marital property rights. Thus, although Judge Monroe indicated that he would have found the trust to be a sham or illusory trust, there was no legal remedy available for this finding. The Fifth Circuit also found that the Bankruptcy Court properly denied an 11th hour attempt to amend the adversary proceeding to assert a constructive trust claim over the trust assets.
Thus, the trust remained intact but wounded. The Fifth Circuit rejected the argument that it would be necessary to pierce the corporate veil in order to consider transfers to entities controlled by the trust to be self-settled assets. The Court found that a trust is not a legal entity separate from its trustee. Apparently this led to the conclusion that an asset transferred to a corporation owned by the trust was the same as a transfer to the trust itself. Next, it found that the trust had waived its argument that Mr.
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This generic finding of plausibility avoided the need to examine the evidence in depth as Judge Monroe did. What Does It All Mean? While the opinion from the Court of Appeals turned out to be somewhat dry and technical and largely anticlimactic, there are several lessons which can be learned from the larger saga.
It is better to file sooner rather than later. In some respects, this is a tale of two partners. James Gressett took his medicine and filed bankruptcy in the early s.
He received a discharge and was able to start over again. Gary Bradley, on the other hand, tried to tough it out.
When he filed bankruptcy some ten years later, he succeeded in attracting much more attention than if he had filed more promptly. By the time that Bradley filed for bankruptcy, newspaper articles and the FDIC deposition provided the Trustee with a road map for his investigation. The concept of a self-settled trust just got larger. The Fifth Circuit never really explained how assets which had never been held in the name of the debtor could be treated as self-settled assets in the hands of the trust. Normally, a self-settled trust is easy to determine.
The Debtor owns an asset and then contributes that asset to a trust under which he is the beneficiary. At this point, the trust is determined to be self-settled and any spendthrift trust restriction is unenforceable. In the Bradley case, Judge Monroe took a very expansive view of what constituted a self-settled asset. Based upon the opinions, it appears that there was never a legally enforceable agreement for third parties to hold property for Mr.
Bradley, but that they acted as if there was such an agreement. The Fifth Circuit responded to this tantalizing question with a shrug, dismissing the issues as mere fact finding to be upheld so long as they were plausible. The Fifth Circuit also punted on the issue of whether someone who was not the named settler of a trust could make a self-settled contribution to the trust, finding that although this issue was presented to the bankruptcy court, it had not been presented to the district court.
While the court of appeals did not expressly rule on this issue, the clear implication is that they would have agreed with the bankruptcy court that anyone who contributes an asset to a trust is a settler; otherwise, the entire case would turn on a technicality of appellate procedure namely, whether an issue raised in the bankruptcy court but not the district court is waived.
The potentially expansive reach of this case is shown by the following hypothetical. Assume that parents own a business and their children work in the business. He knows. We might say, "He did it, but he is God. So how does that apply to me? This is why Lazarus was raised from the dead.
And it's also why Jesus waited. Not only so Lazarus would die. He certainly, as God, could have arranged that He was near the town, but He was far away from the town and after He was told about Lazarus, He went slowly to Bethany and took four days.
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He waited so that He could teach us something that is very important: that we must wait, that we must be patient, that we must have faith even when it appears that things are not as we would wish them to be, and that they won't change. Jesus Christ can take a man, stinking, from the grave, after four days, and raise him from the dead, He can raise us. But don't believe in the resurrection later; believe in the resurrection now.
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Live in that belief. Try to change because of that belief. Believe that you can be changed. I don't care what it is that assails you. God can heal you. Not later, but now. Don't believe in the resurrection -- later. Believe in the resurrection and the life, Who is with us, now. We're about to partake of His holy body and blood for our sustenance, that medicine of immortality. Our immortality, you know, begins with our baptism. And we are just increasingly fulfilling it every day that we live. Live in the light of the resurrection. Believe it. Believe that you will change. And when you hear God's voice saying, "Come forth" at the resurrection, you will be filled with joy.
May God help you. Now a certain man was sick, named Lazarus, of Bethany, the town of Mary and her sister Martha. If any man walk in the day, he stumbleth not, because he seeth the light of this world. Believest thou this? They said unto him, Lord, come and see. It was a cave, and a stone lay upon it. Martha, the sister of him that was dead, saith unto him, Lord, by this time he stinketh: for he hath been dead four days.