¹ Alter Domus, LLC is now the administrative agent and thus the appellee in this case. For ease of reference, we refer only to Chase.

² After Winget reinstated the Trust, the district court enjoined Winget from further interfering with the trust property. We upheld the injunction, and it remains in place today. See JPMorgan Chase Bank, N.A. v. Winget, 801 F. App’x 962 (6th Cir. 2020). According to Chase, Winget’s claim for declaratory relief is moot given this injunction. But Winget can (and did) appeal the fraudulent-transfer decision. And since Chase prevails, Winget’s claim for declaratory relief necessarily must fail. After all, a declaration that Chase has no recourse against the trust assets is the inverse of whether Chase is entitled to the assets based on a fraudulent transfer. So we need not address mootness nor the declaratory-judgment action.

³ Glazer involved the Michigan Uniform Fraudulent Conveyance Act (MUFCA), which was replaced by MUFTA in 1998. But courts interpret the relevant provisions the same under both statutes. See In re Harlin, 321 B.R. 836, 839– 40 (E.D. Mich. 2005); see also Jeffrey L. LaBine, Michigan’s Adoption of the Uniform Fraudulent Transfer Act: An Examination of the Changes Effected to the State of Fraudulent Conveyance Law, 45 Wayne L. Rev. 1479, 1481, 1488, 1491–92, 1500 (1999).

⁴ Further, under Winget’s theory of ownership, neither a revocable trust nor an irrevocable trust would ever own property. And no one disputes that when an irrevocable trust breaks a contract, a creditor can go after the assets held by the irrevocable trust.

⁵ Although there are some differences between fraudulent transfer under the bankruptcy code and MUFTA, those differences are not relevant here. Compare 11 U.S.C. § 548(a), with Mich. Comp. Laws § 566.35; see also 4 Norton Bankr. L. & Prac. 3d § 67:1.

⁶ If at some point the Trust becomes insolvent, the IRS would have priority to any distribution issued by the LLCs rather than Chase. See 14A Mertens Law of Fed. Income Tax’n § 54:147 (May 2022 Update). - 16 - Case No. 21-1568, JPMorgan Chase Bank, N.A. v. Winget cash distributions, including the $79 million he paid in taxes. See AFT Mich., 846 N.W.2d at 590. To meet that burden, Chase needed to prove that Winget is personally liable for the Trust’s taxes and thus couldn’t pay for them out of the trust assets. It didn’t meet that burden. Thus, the district court should have excluded the $79 million from Chase’s relief. It didn’t. So we reverse that aspect of the district court’s decision. That said, Winget was unjustly enriched by the remaining cash distributions. Indeed, Chase has shown it is entitled to all but the $79 million that Winget paid in taxes. B. Finally, we turn to the remedy: the constructive trust imposed on the promissory notes and cash distributions. Winget challenges that decision as an abuse of discretion. See Anchor v. O’Toole, 94 F.3d 1014, 1025 (6th Cir. 1996). A constructive trust is “not a real trust” like Winget’s Trust. See Restatement (Third) of Restitution and Unjust Enrichment § 55 cmt. b (Am. L. Inst. 2011). Rather, it is an equitable remedy that comes into existence after a court determines that the plaintiff is entitled to specific property in the defendant’s possession. In re Omegas Grp., Inc., 16 F.3d 1443, 1451 (6th Cir. 1994); see also In re Filibeck Estate, 853 N.W.2d 448, 449–50 (Mich. Ct. App. 2014). The “trust” language is merely a metaphor: The defendant (here, Winget) holds the designated property “in constructive trust” for the plaintiff (here, Chase). See Restatement (Third) of Restitution & Unjust Enrichment § 55 cmt. b (Am. L. Inst. 2011). Translation: The plaintiff has a superior claim to property in the defendant’s possession, so the defendant is simply “holding” the property for the plaintiff until it is returned. The practical result is a “mandatory injunction” directing the defendant to surrender the property to the plaintiff. Id. - 17 - Case No. 21-1568, JPMorgan Chase Bank, N.A. v. Winget Under Michigan law, a constructive trust may be imposed when “necessary to do equity or to prevent unjust enrichment.” Kammer Asphalt Paving Co. v. E. China Twp. Sch., 504 N.W.2d 635, 641 (Mich. 1993) (citation omitted). Constructive trusts are often imposed when the property at issue was “obtained through fraud, misrepresentation, concealment, undue influence,” or another circumstance that makes it “unconscionable” for the defendant to “retain and enjoy the property.” Id. (citation omitted). And that’s exactly what happened here. Winget obtained the promissory notes and cash distributions only because of his fraudulent revocation—precisely the behavior that justifies a constructive trust. See id. Further, when he rescinded the revocation, Winget told the court that he returned the trust property to “exactly the condition it was [in] immediately before the Trust was revoked.” R. 777, Pg. ID 27032. Yet he kept the cash distributions and promissory notes for himself. This behavior is arguably concealment. In any event, Winget’s actions directly contributed to the reason the district court imposed the constructive trust. See Kammer Asphalt Paving, 504 N.W.2d at 641. Thus, the district court did not abuse its discretion. Still, Winget attacks the district court’s decision on three fronts. First, he argues that a constructive trust is inappropriate when money damages are calculable and the target of the constructive trust is solvent. And here, the Trust is solvent so, Winget says, a constructive trust wasn’t necessary. But that’s not the law. In Michigan, a court may impose a constructive trust whenever “necessary to do equity or to prevent unjust enrichment.” Id. And Michigan courts have upheld constructive trusts against solvent parties. See, e.g., Sloan v. Silberstein, 141 N.W.2d 332, 338– 40 (Mich. Ct. App. 1966). True, Chase could have sought a money judgment against the Trust. So a constructive trust may be a belt-and-suspenders remedy; that is, it is just a way to ensure the - 18 - Case No. 21-1568, JPMorgan Chase Bank, N.A. v. Winget Trust will pay up. See Restatement (Third) of Restitution and Unjust Enrichment § 55 cmt. c (Am. L. Inst. 2011). But that doesn’t mean the district court abused its direction by imposing one. Cf. Winget, 942 F.3d at 751–52 (describing the “extremely broad” authority that Michigan gives courts to execute judgments (citation omitted)). Indeed, there was reason to believe that Winget— after secretly revoking the Trust—might try to pull another fast one on Chase. A constructive trust ensures he can’t. Next, Winget objects to the fact that the constructive trust directs the assets directly to Chase rather than the LLCs that gave him the distributions (both cash and promissory notes). As he sees it, the LLCs can’t be fully restored (the goal of restitution) if the assets go to Chase. But he’s got the analysis flip-flopped: The goal of restitution is to extract the unjust benefit from the wrongdoer (Winget) and to return that benefit to the wronged party. See Wright, 934 N.W.2d at 810. Here, Chase is the wronged party, not the LLCs. Indeed, had Winget not revoked the Trust, Chase would have been entitled to the distributions—not the LLCs. So the district court did not abuse its direction by imposing a constructive trust on the promissory notes and cash distributions (save for the $79 million paid to the IRS). And last, Winget argues that imposing a constructive trust on the $79 million he paid to the IRS is “impossible” because those funds are no longer “identifiable.” Appellants Br. 51. We need not address this argument. As mentioned above, Chase has not met its burden to prove Winget was unjustly enriched by the $79 million. That means Chase is not entitled to the $79 million currently held in constructive trust and the district court abused its discretion by imposing a constructive trust on this money. - 19 - Case No. 21-1568, JPMorgan Chase Bank, N.A. v. Winget C. Winget makes additional arguments about the interaction between the fraudulent-transfer claim and the unjust-enrichment claim. He objects to the fact that the two claims are based on the same wrongful conduct: the revocation. And he suggests the unjust-enrichment claim (including the constructive-trust remedy) can’t stand because courts may not “grant equitable relief without first determining that the plaintiff has no adequate remedy at law.” Golden v. Kelsey-Hayes Co., 73 F.3d 648, 662 (6th Cir. 1996). Winget argues that MUFTA—not equity—provides the remedy. But that misstates Michigan law. MUFTA doesn’t supplant common-law remedies like unjust enrichment, it supplements them. Mich. Comp. Laws § 566.42. That means Chase can seek relief under both theories. See Morris Pumps v. Centerline Piping, Inc., 729 N.W.2d 898, 907 (Mich. Ct. App. 2006). And as for the remedy, Michigan courts have held that a constructive trust may be imposed “even where a legal remedy exists.” Reed & Noyce, Inc. v. Mun. Contractors, Inc., 308 N.W.2d 445, 448 (Mich. Ct. App. 1981). So in this regard, Winget’s gripe with the district court’s ruling rings hollow. IV. According to the dissent, the above analysis stems from flawed premises. See Dissenting Op. 33. Rather than consider the issues presented in this appeal, it would wind back the clock seven years and reverse our prior decision that held the Trust had a binding contract with Chase. Id. at 12. The dissent makes several points as to why that decision could be wrong. And if we were working on a blank slate, we would take seriously each of these arguments as well as the competing arguments on the other side. But we aren’t working on a blank slate. Our slate is chock full of prior decisions—each building from and relying on our unchallenged prior holding that the Trust and Chase have a binding contract. - 20 - Case No. 21-1568, JPMorgan Chase Bank, N.A. v. Winget Before we disturb seven years of litigation based on a single bad apple, we have an obligation to weigh prudential concerns and consider the consequences. See 18B C. Wright & A. Miller, Federal Practice and Procedure § 4478 (3d ed. Apr. 2022 Update). Indeed, the Supreme Court has explained that courts should be “loath[]” to revisit prior decisions absent “extraordinary circumstances.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988). Here, we can’t properly consider whether extraordinary circumstances might justify revisiting our prior opinion. That’s because neither party has asked us to review the so-called rotten apple. The last time Winget challenged the ruling from that appeal was when he sought certiorari in the U.S. Supreme Court. But the Court denied cert. Winget v. JPMorgan Chase Bank, N.A., 577 U.S. 1048 (2015) (mem.). Since then, everyone—court and parties included—has operated within the confines of the ruling, for better or worse. Winget even accepted the ruling as law of the case in a prior appeal. See Brief of Appellants at 20 n.6, JPMorgan Chase Bank, N.A. v. Winget, No. 19-2194 (6th Cir. Dec. 16, 2019). That concession arguably waived any argument challenging the holding. The dissent doesn’t explain why we should overturn a decision that Winget not only waived but has not asked us to review. See Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019) (explaining that a party forfeits an argument if he does not raise it below); cf. Bousley v. United States, 523 U.S. 614, 622–23 (1998) (requiring parties to preserve arguments even when binding precedent forecloses them). To reconsider our prior holding unprompted would run contrary to the principle of party presentation—a principle the Supreme Court has told us to take seriously. See United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579–82 (2020). And for good reason. To start, our adversarial system depends on it. We assume that counsel—rather than courts—know how to best serve their clients. Id. at 1579. Courts are merely “passive instruments of government.” Id. (citation omitted). - 21 - Case No. 21-1568, JPMorgan Chase Bank, N.A. v. Winget Thus, we should not “sally forth each day looking for wrongs to right.” Id. (citation omitted). Unnecessarily considering (or reconsidering) issues not raised by the parties turns this relationship on its head. What’s more, had Winget asked us to revisit our prior ruling, Chase could have responded. Indeed, Chase might have equally convincing arguments that would support that holding. But we don’t know, because Winget didn’t ask us to revisit our ruling. In light of the circumstances, it would be inappropriate for us to reconsider seven years of litigation and dozens of judicial opinions. * * * This litigation may feel like the story that never ends. But for the sake of finality and the swift adjudication of justice—two bedrock principles of our judicial system—we hope this marks the final chapter. We affirm in part and reverse in part. - 22 - Case No. 21-1568, JPMorgan Chase Bank, N.A. v. Winget ALICE M. BATCHELDER, Circuit Judge, dissenting. During the past 15 years, this dispute has generated over 50 judicial opinions: nine in this court and more than 40 in the district court. Almost all are sound. Several are very good, even excellent. One, however, is rotten. And at least the way I see it, this one bad apple spoils the whole bunch. Rather than continue to accept, and work around, that rotten opinion—and the obstacles that continue to sprout from its holding—I would prefer to correct that decision, apply the law in plain terms, and end this litigation in the way that Judge Cohn decided ten years ago. Therefore, despite my concession that the majority has written a legally sound and rather good opinion, and my recognition of the importance of finality, I will respectfully dissent. I. A word about revocable trusts. “Under Michigan law, a revocable trust is not a separate legal entity with regard to the rights of creditors.” Mickam v. Joseph Louis Palace Tr., 849 F. Supp. 516, 523 (E.D. Mich. 1993) (relying on M.C.L. § 556.128); accord M.C.L. § 700.7506(1)(a) (“During the lifetime of the settlor, the property of a revocable trust is subject to claims of the settlor’s creditors.”); see also In re Hertsberg Inter Vivos Tr., 578 N.W.2d 289, 291 (Mich. 1998). A revocable (or living) trust is just a conceptual way for a person (the settlor or grantor) to organize or manage his or her assets. The settlor transfers title to the assets to the revocable trust but retains full ownership and control over those assets. To the extent that the trustee has any role, the trustee acts at the will of the settlor and owes a fiduciary duty to the settlor. While the settlor is alive, the beneficiary has no rights whatsoever. The settlor can change the terms, change the contents, or even dissolve a revocable trust at any time, for any reason. Accordingly, the settlor’s - 23 - Case No. 21-1568, JPMorgan Chase Bank, N.A. v. Winget creditors can reach the assets held in the trust. And the settlor must pay the taxes incurred by assets held in the trust—the trust does not have a tax-identification number or file a tax return.1 In stark contrast, a settlor who creates an irrevocable trust relinquishes control of the assets to the trustee, who manages the trust under a fiduciary duty to the beneficiary. The irrevocable trust becomes its own separate legal entity. The settlor cannot change the terms, change the contents, or dissolve the trust. The settlor’s creditors cannot reach the trust assets. And the trustee would file a tax return for the irrevocable trust using a tax-identification number for the trust. In conceptual terms, opening a revocable trust is like renting a storage unit at the local self- storage facility. You rent a unit and put some of your belongings in there. Over time, you might move any number of things to and from, in and out of the storage unit. That is how it works. You can theoretically put all your belongings in there if you want. Or you can empty it and close it, and terminate the lease. So it goes with a revocable trust: fill it, change it, empty it, close it. That is the promise of a revocable trust: you, as settlor, can revoke it at any time. The tradeoff is that your placing of your assets in a revocable trust does not protect your assets from your creditors. But neither do you risk ever losing control over your assets in a revocable trust. Like a self-storage unit, a revocable trust is fundamentally just a place where a settlor keeps his or her assets. This case involves Larry Winget’s revocable trust, which “held most, if not all, of Winget’s assets.” JP Morgan Chase Bank, N.A. v. Winget, 901 F. Supp. 2d 955, 961 (E.D. Mich. 2012). As if to make this even easier, Winget is the Trust’s settlor, trustee, and sole beneficiary. The key 1 The real benefits of a revocable trust take effect only after the settlor dies, at which point the settlor—being dead— is no longer able to revoke the trust and it passes (i.e., its contents pass) to the beneficiary(-ies). The most significant benefit is that, by passing via the trust, the transfer of assets avoids probate. The trust might also provide the settlor an easier means of managing the assets after death or during the transition, and in some cases might reduce or defer estate taxes, particularly if some assets are domiciled in another state. Therefore, a revocable trust is almost always used as an estate planning tool—namely, as a will substitute—and is commonly referred to as a living trust. - 24 - Case No. 21-1568, JPMorgan Chase Bank, N.A. v. Winget point is that Winget owns the assets, all of them, and happens to keep them in his revocable trust. The Trust does not own any assets. As settlor, Winget can move his assets to and from, in and out, of his revocable trust at any time, for any reason. He can put all his assets in it if he wants. Or he can empty it and close it. The revocable trust is a storage place, not a distinct legal entity. II. The short story. Winget’s company, Venture, borrowed $450 million from Chase and defaulted on the loan with about $350 million outstanding. With Venture facing likely bankruptcy, Chase was left facing a cents-on-the dollar collection. Rather than call the loan, force liquidation, and suffer a substantial ($300-plus million) loss on this loan, Chase and Winget negotiated a loan forbearance agreement in which Chase would continue to extend the $350 million loan in exchange for Winget’s new personal Guaranty of certain collateral, with a $50 million limit. Thereafter ensued a back-and-forth negotiation to finalize the draft written agreement. In one of the proposed edits, Chase added Winget’s Trust to the designation of Guarantor because Winget kept the pledged assets in the Trust. Note that, legally, this edit did not change anything: Winget—not the Trust—owned and controlled the assets; Chase, as creditor, could reach those assets in the Trust as if Winget owned them himself; and Winget could remove those assets from the Trust (or even close the Trust) at any time, for any reason. Even at this late date, Chase concedes as much. See Chase Br. at 6, (Dkt. No. 19, Sept. 17, 2021) (“Indeed, [Chase] agrees that Mr. Winget had the right to move property in and out of his trust as he saw fit, both before and after the Guaranty was signed.”). Because the Trust is revocable, the pledge of assets by Winget- and-Trust is no different from the pledge of assets by Winget alone insofar as Chase’s claim to those assets. The Trust did not—and could not—make a Guaranty pledge that was distinct from Winget’s. Reciprocally, Winget could not have substituted the Trust as Guarantor to protect - 25 - Case No. 21-1568, JPMorgan Chase Bank, N.A. v. Winget himself personally from Chase’s claims; Chase could reach through the Trust to collect from Winget in the same way it could reach through Winget to collect from the Trust. Winget is the owner. The revocable Trust is a storage space for Winget’s assets, not a distinct legal entity. But, during that back-and-forth exchange of the countless proposed edits to the draft written agreement, the parties made a mistake: the editors changed the provision listing the Guarantor to include both Winget and the Trust, but they did not similarly change the provision for the $50-million limit, which was left naming only Winget (not the Trust). We know this was a mistake because the district court held an eight-day trial, heard witnesses, scrutinized evidence, and considered the competing claims. Chase claimed that Winget and the Trust had each given a separate guaranty and, while Winget had limited his guaranty to $50 million, the Trust had given Chase an unlimited guaranty. Winget countered that such an outcome was not their agreement, but was a mistake; that both parties had intended and agreed that the Guaranty was limited to $50 million and the inclusion of the reference to the Trust did not change that. Judge Cohn issued a thorough and meticulous opinion finding as a factual certainty and explaining beyond any doubt that the final version’s failure to include the Trust in the limitation provision was a mistake: The Winget Trust for purposes of this case is no different than Larry Winget individually. A living, or inter vivos trust, is a common estate planning tool which is often used to control the distribution of assets. See Restatement (Third) of Trusts § 25 Validity and Effect of Revocable Inter Vivos Trust (2003). Here, Winget was the settlor, trustee, and beneficiary of the Winget Trust. As settlor, Winget owned the assets in the Winget Trust. See M.C.L. § 556.128. The Winget Trust was essentially Winget’s alter ego. Winget used the Winget Trust to hold ownership of many of his assets, including the pledged stock. It had no special significance for purposes of this case. The Winget Trust was purposely added to the [Guaranty] and related documents to secure ownership of the pledged stock. It was not added to secure any additional liability. As such, the failure to include the Winget Trust under [the limitation provision] was a mistake. It was a mistake that was overlooked by both parties. It is a mistake that the Court has the power to correct. - 26 - Case No. 21-1568, JPMorgan Chase Bank, N.A. v. Winget Winget, 901 F. Supp. 2d at 972 (minor edits to capitalization). The court held that the $50-million limitation applied to Winget and the Trust together. Winget wired a $50 million payment to Chase. JP Morgan Chase Bank, NA v. Winget, No. 08-13845, 2014 WL 320686, at *1 n.1 (E.D. Mich. Jan. 29, 2014). Thus, while certain collateral claims and issues remained, this effectively ended Chase’s claim to recover against Winget or the Trust under the terms of the Guaranty. III. Now the bad apple. When Chase claimed on appeal that the parties had not been mistaken, the panel agreed and held that “[t]he agreement executed by Winget, the Trust, and Chase reflected the parties’ intent as a matter of law,” such that the parties necessarily intended that Winget and the Trust were separate entities with “Winget, and only Winget [alone], as having limited exposure.” JPMorgan Chase Bank, N.A. v. Winget, 602 F. App’x 246, 258-59 (6th Cir. 2015). Not only does that proposition fail as a matter of common sense, it is fundamentally flawed as a matter of trust law. The Trust, being a revocable trust, is not a distinct legal entity separate from Winget; it is just a place for Winget to store his assets. The only aspect of the analysis with which I can agree is the off-the-cuff statement that “the district court should never have held a trial in the first instance.” Id. at 258. That is true, but not for the reasons stated in the opinion. Rather, a trial was unnecessary because the “mistake” theory was unnecessary. For purposes of Chase’s creditor claim, Winget and the Trust necessarily merged into Winget alone; they are not separate entities, they are both just Winget as the one and only true owner of the assets. Winget pledged the assets to guaranty the loan and the agreement limited that pledge to $50 million. The opinion’s proffered analysis of this issue is specious. After characterizing the district court’s decision as based on a “scrivener’s error” (in which parties reach an agreement, or meeting of the minds, but then make a mistake when memorializing that agreement, i.e., reducing it to - 27 - Case No. 21-1568, JPMorgan Chase Bank, N.A. v. Winget written form), the opinion rejects and completely discards the district court’s trial-based findings of fact in favor of its own factual finding: “We disagree with the district court’s interpretation and conclude that there was no prior agreement between the parties.” Id. at 258. The opinion offers three reasons: (1) there was no “binding contract” until the parties signed the final version; (2) the pre-agreement documents were not a binding agreement; and (3) the agreement contained an integration clause. Id. The first two “reasons” do not disprove a scrivener’s error, they are universal circumstances underlying a scrivener’s error: the parties reached a mutual understanding but, during the back-and-forth bickering over the written specifics, committed a mutual mistake that was erroneously included in the final, binding document. Reliance on the integration clause is equally wrong. Once it is established (as the district court did here) that the parties were mistaken about the substantive terms of the document (i.e., the important parts), the only reasonable corollary is that those same parties were equally mistaken about the integration clause. If this purported “reason” were valid, and the inclusion of a boilerplate integration clause necessarily overcomes any and all mutual mistakes in the formation of a contract (meeting of the minds), then the doctrine of mutual mistake would cease to exist. Instead, “[i]t is widely agreed that oral testimony is admissible to prove fraud or misrepresentation, mistake or illegality. [And] [t]his exception to the parol evidence rule applies even if the testimony contradicts the terms of a completely integrated writing.” 6 Peter Linzer, Corbin on Contracts § 25.20, at 277 (2010). As for Michigan law, parol evidence is generally not admissible to vary the terms of a contract which is clear, unambiguous, and fully integrated, but this “overlooks the prerequisite to the application of the parol evidence rule: there must be a finding that the parties intended the written instrument to be a complete expression of their agreement as to the matters covered.” NAG Enterprises, Inc. v. All State Indus., Inc., 285 N.W.2d 770, 771 - 28 - Case No. 21-1568, JPMorgan Chase Bank, N.A. v. Winget (Mich. 1979). Thus, it is well settled that parties may submit parol evidence to prove that an agreement was the product of mistake. Goldberg v. Cities Service Oil Co., 266 NW 321, 325 (Mich. 1936); Scott v. Grow, 3 N.W.2d 254, 258 (Mich. 1942) (“It is not necessary . . . [to show] that particular words were misunderstood. It is sufficient that the parties had agreed to accomplish a particular object by the instrument to be executed, and that the instrument as executed is insufficient to effectuate their intention.” (quoting 5 Williston on Contracts, Rev. Ed., § 1585)). We were wrong in Winget, 602 F. App’x at 257-59. The district court was right in Winget, 901 F. Supp. 2d at 972. And this case should have ended with the determination that Winget and the Trust were one and the same, with the $50 million limitation applicable to both. Instead, because we held that Winget and the Trust are separate entities and the Trust agreed to an unlimited guaranty, Chase has pursued litigation against the Trust in an effort to take assets that the Trust does not own, could not have pledged, and did not agree to pledge. IV. This brings us to the present appeal and the majority opinion, which confronts and decides certain needlessly complicated questions. These questions are “needlessly complicated” because our prior (incorrect) holding compels the majority to proceed from the flawed premise that Winget’s revocable Trust is something other than an ordinary revocable trust. Consider the “transfer” question—whether Winget “transferred” assets when he removed assets from his revocable Trust (i.e., revoked his revocable trust). See Maj. Op. § II.A. In any other case—every other case—this is a simple question with a simple answer: because this is a revocable trust, there was no transfer. Winget owned the assets, regardless of where he kept them. See M.C.L. § 556.128 (“When the grantor in a conveyance reserves to himself an unqualified power of revocation, he is thereafter deemed still to be the absolute owner of the estate conveyed, - 29 - Case No. 21-1568, JPMorgan Chase Bank, N.A. v. Winget so far as the rights of his creditors and purchasers are concerned.”). Winget’s act of closing the Trust did not “dispose of or part with” any assets. The Michigan Uniform Fraudulent Transfers Act (MUFTA) defines “transfer” as: “every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset.” M.C.L. § 566.31(q) (emphasis added). Here, Winget owned the assets both before and after he closed the Trust. As a matter of Michigan trust law, Winget’s movement of the assets out of his revocable Trust did not affect Chase’s rights at all. See M.C.L. § 700.7506(1)(a) (“During the lifetime of the settlor, the property of a revocable trust is subject to claims of the settlor’s creditors.”). It is only due to our faulty holding in Winget, 602 F. App’x at 257-59—contrary to Michigan law, see Mickam, 849 F. Supp. at 523—that this revocable Trust is not a normal revocable trust, but is instead treated as a distinct legal entity that pledged to Chase the assets therein. This requires that the Trust—not Winget—own the assets, inasmuch as the word “assets” involves ownership. See, e.g., Merriam-Webster Online (offering a definition of “assets” as “the entire property of a person, association, corporation, or estate applicable or subject to the payment of debts”); Dictionary.com (“items or resources owned by a person, business, or government”). If the Trust does not own these items, then they would hardly qualify as the Trust’s “assets.” The majority navigates this complication by proposing that “ownership is irrelevant” to the fraudulent transfer; the act of moving the assets beyond Chase’s reach makes this a “transfer.” If ownership mattered, and Winget owned the assets (unequivocally the situation under ordinary Michigan trust law), then Winget’s act of closing the Trust did not transfer (dispose of or part with) any assets, see M.C.L. § 566.31(q). Therefore, the Trust entity must have disposed of or parted with the assets (by returning them from whence they came, namely, Winget’s personal ownership - 30 - Case No. 21-1568, JPMorgan Chase Bank, N.A. v. Winget and possession), thus moving them beyond Chase’s reach. Of course, if this were an ordinary revocable trust, this movement of assets would not put them beyond Chase’s reach. The question of “fraudulent” is similarly convoluted. See Maj. Op. § II.B. Under ordinary trust law, the assets held in the Trust are entirely Winget’s assets, so Chase’s claim against the Trust would just fold back into a claim against Winget, whether Winget placed the assets in the Trust or not. See M.C.L. §§ 556.128 & 700.7506(1)(a). Of course, Chase agreed to limit its recovery from Winget to $50 million. But, otherwise, Winget could not avoid Chase’s claim by transferring assets to or from his Trust, and therefore could not commit a “fraudulent” transfer. Our prior faulty opinion in Winget, 602 F. App’x at 257-59, again complicates this by holding that the Trust is its own entity, and it owns the assets. The majority declares that the Trust is the “debtor,” and finds that “the Trust was insolvent after the revocation,” inasmuch as “its assets were zero.” This presupposes that the Trust—not Winget—owned the assets; if Winget owned the assets and simply stored them in his revocable trust, then the “Trust’s assets” were zero all along. Similarly, a finding that the Trust did not receive reasonably equivalent value in exchange for the revocation also presupposes that the Trust owned the assets. If the Trust “owned” nothing, then it did receive equivalent value. Namely, nothing. Of course, on this same reasoning, Winget received nothing when he placed his assets into the Trust, certainly unaware that he was “transferring ownership” and could not recover his assets from his revocable trust without paying equivalent value in exchange (i.e., buying his own property back from his own Trust). On Winget’s argument that as the settlor of a revocable trust he has a fundamental right revoke the trust at any time, the majority answers that his right is not unlimited: the Trust’s contractual obligation to its creditor prevents the settlor from revoking the revocable trust. Thus, as a practical matter, this means a trustee can convert a revocable trust into an irrevocable trust by - 31 - Case No. 21-1568, JPMorgan Chase Bank, N.A. v. Winget entering a contract with a third-party, effectively making the third-party the trust beneficiary, and can do so, apparently, without the settlor’s agreement or participation. In fact, the majority suggests that a settlor who removes his encumbered assets from his revocable trust does not just assume the obligations against those assets, see M.C.L. §§ 556.128 & 700.7506(1)(a), that settlor commits an intentional-interference-with-contract tort. That is far afield from ordinary trust law. Finally, consider the taxes. See Maj. Op. at § III.A.2. Under ordinary trust principles, the settlor of a revocable trust pays any incurred taxes—a revocable trust does not even have a tax- identification number, much less a means of filing or paying taxes. Again, the basic principle of revocable trusts is that the trust does not own anything, it is just a place for the settlor to store his assets. Because the settlor owns the assets placed in the trust, the settlor pays the taxes. Again, considering this question under ordinary trust law, Winget—the settlor—owned the assets held in the trust, including the LLC distributions, so Winget was obliged to report the income on his personal income tax returns and was responsible for paying the taxes incurred by the LLCs. The majority recognizes that “the typical rules for revocable trusts may not apply” and suggests that the Trust may have been responsible for paying its own taxes. As a practical matter, this would require the Trust (i.e., the trustee, Winget, I suppose) to formally convert the Trust to an irrevocable trust, to obtain a tax-identification number from the IRS, prepare and file a tax return, and pay the requisite taxes to the IRS. Of course, the IRS was expecting Winget—as the settlor of the revocable Trust—to pay the taxes, so this new undertaking might involve a filing amendment (reducing Winget’s personal taxable income and, correspondingly, his tax liability), a refund of Winget’s $79 million overpayment, or a repayment by the Trust to Winget for the taxes he erroneously paid on the Trust’s behalf (perhaps with its own tax consequences). - 32 - Case No. 21-1568, JPMorgan Chase Bank, N.A. v. Winget All of this is merely to demonstrate, or emphasize, how very far we have ranged from ordinary trust law. And to submit that, along these lines, things are getting worse, not better. V. Our prior faulty opinion in Winget, 602 F. App’x at 257-59, stated or necessarily implied three findings or conclusions that have served as premises for all of the judicial decisions that have followed: (1) the revocable Winget Trust is a separate legal entity, distinct from its settlor, Larry Winget; (2) the Trust entity—not the settlor, Winget—owns the assets held in the revocable Trust; and (3) the trustee of this Trust entity (Winget) pledged the “Trust’s assets” as an unlimited Guaranty on Chase’s entire loan. I find all three to be legally unsound and factually untrue. The majority’s opinion, like other judicial opinions since Winget, 602 F. App’x at 257-59, accepts these premises and ingeniously builds its analysis around them, leading to certain new propositions that will likely serve as premises for future judicial decisions: (1) the Trust’s pledge of assets converted Winget’s revocable trust to an irrevocable trust, forfeiting Winget’s ownership and control of the assets (and eliminating his tax obligation); and (2) Winget’s attempt to control his assets (i.e., revoke his revocable trust) under ordinary principles of revocable trusts was not only a fraudulent transfer, but possibly an intentional-interference-with-contract tort. For all of my criticism here, I recognize that the majority here, like others before, has diligently and thoroughly built its analysis around the given premises to reach a justifiable and defensible conclusion. But I also recognize that, in so doing, with every successive judicial opinion in this case, or application of these opinions as precedent, we do further damage to trust law. Rather than continue to craft new, and increasingly creative, proclamations about the law of revocable trusts, I would prefer to admit our mistake in Winget, 602 F. App’x at 257-59, correct it, and apply plain and ordinary revocable-trust principles in a plain and ordinary way. - 33 - Case No. 21-1568, JPMorgan Chase Bank, N.A. v. Winget I believe that Judge Cohn was correct: “The Winget Trust for purposes of this case is no different than Larry Winget individually.” Winget, 901 F. Supp. 2d at 972. Therefore, the $50- million limitation applied to Winget and the Trust together, Winget has paid Chase that $50 million, and Chase has no further recourse against Winget (or the Trust) on the Guaranty. Moreover, I believe that the Trust and Winget are not separate entities; the Trust, being a revocable trust, is just a place for Winget to put his assets and Winget had every right to fill it, change it, empty it, or close it however he saw fit. Winget owns all the assets, the Trust “owns” nothing. Winget’s revocation of the revocable Trust was not a fraudulent transfer—indeed was not a transfer at all—nor was it an intentional-interference-with-contract tort. And Winget is personally liable for the taxes incurred by the Trust. Given the importance of finality—and the majority’s compelling defense of it, see Maj. Op. at § IV—I should concur. But in the perhaps vain hope that this small gesture might help restrain the opinions and holdings in this case to just this case, I will respectfully dissent. - 34 -