thousand dollars loan that was the subject matter of the loan litigation specifically mr joseph lukemia happen represented in verified discovery m other of the trial that the source of the one hundred and fifty thousand dollars was entirely his personal funds what in fact fifty thousand dollars of the one hundred and fifty thousand dollars he had taken from his disabled sister came as a cow and acted under the guise of part of a came and v there are i don't want to in a court with a bunch of facts but there are just to read how do you know in fact that it was the same fifty thousand that went into that account as if the same fifty thousand came out justice shows that the way that we know that is that there was a counter withdrawal that was discovered in the concurrent probate litigation that shows that the fifty thousand dollars was withdrawn on the same day as the the cashier's check that was issued and it was we have the cashier's check we have the counter withdrawal from virginia  brief does he ever dispute the fact that he took the money from virginia's account and he doesn't dispute the fact that he lied under oath that is an uncontested fact that not once has joseph leucadia attempted to explain or deny and so on so manner up t mclaren and what let's start with the trial testimony he testified that the one hundred and fifty thousand dollars was debited from his accounts it was not evident from his account fifty thousand dollars was debited from his sister is disabled sister's accounts so he represented under oath that it was a one hundred and fifty thousand dollars was debited from his account it was not he represented in answers to verify discovery specifically there were two interactive tori's posed to joseph leucadia where bruce lucania asked joseph to disclose the source of the funds and the response was from joseph leucadia was that he affirmatively stated that the one hundred and fifty thousand dollars was sourced from his personal funds and that is not true and in response to requests for production where he is asked to produce documents evidencing the source of the funds all he does is produce the fifty thousand dollars cashier's check and the one hundred one thousand dollars that cashier's check and does not he omits the counter withdrawal slip that would have connected the fact that it was he withdrew directly from his disabled sister's account the fifty thousand dollars that he misrepresented to the trial court was his personal thoughts and he said do you know i'm sorry go ahead finish no go ahead and my bottom line question is why does it matter in other words it alone is made from one hundred and fifty one thousand dollars why is this source of belong on the end all be all from your perspective the reason that it matters justice jorgensen equity provides that  capacity not in his capacity as an executor not on virginia's behalf of virginias estate if yes then attempting to collapse and benefit from his theft equity provides that that cannot happen so that's why it matters he's trying to debt at least partially that he does not have the standing to collapse and so with regard to the motion of a tape there were two different avenues through which bruce requested that the motion vacate the controlled the result and as i've discussed the testimony is without a doubt false joseph does not contest that it was willfully and purposely given in that again he's attempting to collect a debt at least partially that does not this is an action on a loan note that she is pursuing and so it's we need to properly address what is happening at the trial court level is that joseph is attempting to collect a debt that rightfully belongs to virginia as a state  it's his standing that matters at the trial court level and he does not have the standing to collect some are you get in here only agreeing that you all on the debt one hundred thousand dollars that question it needs to be investigated further what we've love what you just answer it now and tell me i mean if that's your arguments are you then therefore saying that the balance of the debt is truly due and owing just the struggle isn't because of the fraud that has been perpetuated we cannot say with certainty what the source of the one hundred thousand dollars is and so what we do know that you are the one that got it and it did money is do correct if money if any money is due it's it would joseph does not have the standing to collapse on virginia's behalf and that better guard if he took it out of her a state and he was intending to replace it back into her estate then why wouldn't he have standing to collect that i believe he's a fiduciary in some way shape or form with her estate and in addition there are two isn't there a proceeding in a probate a state that's supposed to make these determinations which means that your arguments have not yet come into fruition which means your premises have not been established yet which means this is somewhat in the probate proceedings if we know that he has no intent it's been raised throughout the probate gazin and in the loan litigation and there it is again widespread evidence of the misappropriation of assets which goes to what bruce luke ania has was trying to assert as an affirmative defense that was stricken in that there is absolutely no evidence that joseph is simply attempting to coll an estate asset and intends on paying it back because he's repeatedly lied under oath regarding the true source of the funds he's lied in a probate litigation is your count i read your briefs and i couldn't find the words counter claim or set up anywhere in the briefs should there have been a counterclaim file based upon what you're saying which has supposedly been established by the perjurious conduct in other words there were elements in a counter claim or a set off that were established by the perjury and you didn't raise it either in your briefs or apparently below your honor it was raised below in a couple of different ways the it are claim has merit that the fifty thousand dollars came from virginia as a state and joseph never intended to do anything but  if you establish that in the probate proceedings will you not get a judgment against joseph which will then offset or partially discharge the amount of judgment that he is claiming from you briefs as well as record i didn't see a transcript or by standards report attached to that nor did i see any pleadings attached from the probate case can you there they were attached as exhibits to that i know that it was a request to supplement record with some of the proceedings from the probate case which was denied but that was my understanding incorporated into the motion  were transcripts was there a court reporter in those proceedings there was not i'm a court reporter and the motion to strike there is not a bystander's report it is bruce's position that because the motion to strike is review you sitting here brief that the perjury that mister cho's have committed was so unabashed that sanctions should have been applied by this particular trial court judge apparently for the perjury committed in the probate court am i misunderstanding what your brief was attempting to achieve your honor the the conduct of joseph leucadia in was to show in the greater contacts this scheme that's being perpetuated and we are not seeking sanctions for any of the shows of misconduct in the probate case he's been sanctioned in that case we are not seeking work we are only saying for his lies under oath right now in perpetuating a fraud on the trial court initiating a lawsuit that he had no standing to collect a debt for that he he said be sanctioned and that is that it is an abuse of discretion quantity the purpose of the loan was pretty simple was to enable bruce to purchase rehabilitate and flip a residential investment property and then the sa made to his brother joseph and therefore because he broke that promise to repay the bridge the contract he had with his brother which prompted his brother just at the stoop to recoup step money that was lied to proves isn't that relevant counsel as to whether or not the monies that loaned to his brother were in fact monies that did not belong to him is that relevant and if so how would if not how how honor that i would like to make is that that this whole content this contention that wrist makes that the trial outcome was obtained or the result of some sort of perjury that that's just never  the trial outcome was obtained based on unimpeached testimony that was corroborated by bruce leucadia at the trial the source of funds again it was never made an issue at trial the pleadings make it clear the trial transcripts make that abundantly clear so this is something that is see that coast more about what was never an issue in the caves again it's very important and that you see a race from the answer medicine was like one hundred and fifty thousand dollars when you're alone something and you accept it that means you took something that you if that wasn't yours that was something else that was someone else as well signs that the perjury in this case occurred  bruce so he didn't ally when he said then a burst isn't vs never denied that he accepted one hundred and fifty thousand dollars from his brother joseph a lot of this is really a distraction to take away from of the funds was a central issue in this case from the beginning but that claim is not substantiated then any of that please your honour's or the common law director when your view it that the issue was truly non existent through the litigation this claim that there was newly discovered evidence that that never occurred there in order for something to be newly discovered the evidence has to be unavailable prior to trial and we know this suppose the newly discovered evidence was available prior to trial and checked it was available nine months before a lawsuit was ever even filed in this case and if the explanation is t unavailable willoughby is unreasonable then the trial court does not have to consider it litigants cannot stand the lose at trial and then after losing a trial franticly attempt to gather evidence in order to show that the trial court committed error that is precisely what happened in this case and his attorneys had the information they claimed to be newly discovered months before the lawsuit was filed there was a conscious decision made to do nothing with that information when suit was filed in the answer to the complete when the trial occurred during any of the testimony that occurred during the trial and now they want joseph to be held accountable for that conscious decision that was their trial strategy and because it didn't work out in their favor and they're not entitled to another bite at an apple bite at the a the court denied vs motion for sanctions for one ursus argument shouldn't even be entertained because it centers around unsubstantiated allegations and a completely unrelated case trial your honour's there was no cross examination concerning the source of funds not a single inquiry d there were no exhibits that were offered there were no exhibits that were even used during the trial and no impeachment was went on it went to trial there were no attempt at making any any form of argument to that effect during the trial and all of that is waived the only thing that wrist claims was i he didn't technically repay and there wasn't a penny to repay he says he claims he repaid him because i should have received money in some unrelated case and all by the way i don't even know what that amount of money i was supposed to get is but i believe that it should at least be more than one hundred and fifty thousand dollars so let's just forget about this whole thing well if you're if he had alleged as an amount certain that he also alleged that he would would have paid that amount to say that that would have been a term for repayment because virginia's mistake could have been worth nothing it could have been worse are you saying that it's impossible program to make the claim are you just saying that in reality it doesn't fit entertain the idea that she was going to leave her brother for sending money she she could have changed her mind before she passed away so so embarrassed thought it's impossible for us to say well that that the source of the funds was purportedly never made an issue that the attempt was to make it an issue in the interactive tories and to discover the source of the funds that's why we're not talking about whether a response was perhaps responsive to an interactive jury or fell within the scope of the joseph was asked directly to reveal the source of the funds and he was asked directly to produce any documents related to that and so attempts were made to discover that and to make it at issue and to say that it wasn't made an issue at trial when the obvious attempts were or were made to make it an issue prior to that that argument does not we have this this paradox where we're saying that or not we but the truck court stated that for the purposes of standing analysis and for the purposes of the affirmative defense estate case as a separate case and we can't consider any of that for the purposes of whether evidence is newly discovered that then we can look to the probate cases these positions can't be reconciled for the sake of the long litigation if we go we're saying that the  a separate case for the sake of the long litigation bruce satisfied his requirement under wolf and austin bar in exercising due diligence those cases stand for if you ask questions pointed questions y ou're exercising your due diligence and if the answer to those questions misleads or misrepresents there's no for negligence or there's no false laid upon the propound for any negligence the blame lies with the the answering party who has misled and misrepresented those facts and so it shouldn't you have always if you're saying that your position is what it is you should have always suspected that he says he took money from the state in then you also in your opinion received more information as justice mclaren says about the the transfer of funds or that the proof that you asian it was suspected and so when those questions are posed and the answer is a blatant misrepresentation the fault lies with the answering party and not with bruce leucadia so he has exercised is due diligence as required under wolf and osa and are and we can also look at the other side of the coin and that that subpoena production from us and from twenty eight team was provided to  joseph leukemias counsel we know that they would never assist him in perpetuating any sort of fraud and so when the they have that information and that also and then are assisting with interactive tori's  i'm not trying to lay blame on one side or the other but they've they have that information as well and then their client misrepresented what is your burden it's not their burden right the burden under oath and or in exercising due diligence within the lo litigation was satisfied by bruce looking at it with regard to the if going of defense briefly what happened was that the trial court to the question of fast way from the trier of fact bruce is required to set forth plainly the facts constituting an affirmative defense he did that whether or not he can meet that burden of proving his affirmative defense by a preponderance of the evidence that's a question for him it's a question of fact and whether he can do that at trial it's bruce's contention that that was prematurely stricken by the trial court and i would entertain any additional questions that the court has otherwise bruce asks that the courts reverse the