dispute and related to discovery particularly given the complexity of the underlying matter if the court will freeze there's no question that this would generally be an issue of fact when we're talking about a statute of limitations in fact heck in oregon case would say that it's generally presents a question of fact but it says still in some cases the fact may be such that will issue exists as to when a plaintiff knew or should have known that the defendant caused the harm suffered and so i guess well we have to look at are the facts right that's correct and in this particular case it seems to me that there was a report in february of two thousand and six to the investors on a balance sheet that said that homes hold homes was old four hundred and six thousand nine hundred and eighty four dollars and that they had previously been paid one million one hundred thousand dollars two thousand and eleven shaw going for these people sues the company and qubit check and they say intentional misrepresentation fraud duty and conspiracy all in connection with the plaintiff's investments in the company and then they make a nd amended complaint and they say misrepresentation court because fraud in the sarong place and then they come up here and now they file a suit and they allege misrepresentation breach of fiduciary duty and aiding or abetting an  awful sale of securities substantially the same arising out of the same investment suspecting fraud had been committed hoping to get some documents in texas that would suggest that in fact they knew you now admit that's why you filed the texas suit was to get some documents and then bigby requests these documents and he gets on may the th two thousand and fourteen a paid invoice register that lists the payments from the company to hold homes for the amount used to purchase you said this is misrepresentation you've said there's a loan that should never have been made to the company it was all supposed to be out of investments and now you know there's the loan you had it given to you back in february two thousand and six and now you've got the documents suggesting exactly what it's about and you're going to say based on this you didn't know or should  known i think the overall answer is no or should have known what should have known there was a there was a fraud that cuba laddish well and i misrepresentation which is we won't be doing this we'll get all the lieu of equity and that is something that was has never been disclosed until two thousand and fifteen it was affirmatively conceal what it is ten minutes there was a loan you knew there was a lot of loans are not forbidden there not to long  i so you're saying seems to me what your argument is you're saying to me judge we don't know it until they admit it so get rid of this know should have known stuff then you have to admit i'm saying based on your filing in the texas lawsuit you knew where you were going you knew what the deal was and now when you get to may have two thousand and fourteen you've got the invoice register you know what happened should have known and therefore summary judgment the some the statue imitation is does not start running until you have knowledge of the facts of the fraud itself or should have known or should have known and in this case w had knowledge sufficient to make them suspicious and you'll see judge simon's opinion is laced with words they were suspicious they were suspicious yes we were and we asked and asked and asked for documents and it wasn't until two thousand and fifteen when the  in place of equity which is fraudulent was concealed in as against the language of the p p m it was that revealed and the texas loft lawsuit was about an entirely different thing and that judge simon even judge simon got that well even judge simon said you know we're not going to do it in the texas thing was filed because she didn't have any knowledge but when we get to the may th two thousand and fourteen paid invoiced register the only thing you got when you say th got to run if you've got the same register it says the same thing well only thing you got further was counsel says it's a bridge loan so you're saying that a letter from counsel saying the hold t homes loan was a bridge loan is the only thing that could have given you any knowledge that is not our argument at all your honor the reason that knowing that there was a lawn in two thousand and fourteen st of all the court is required to look in context not just that one thing but to look at the time i tried to give the contact the documents give me some context i give you some i'll give you some but would point context the two thousand and fourteen payment evidence the court relied on that they claim defense claims nearly identical was buried in page eighteen of twenty two of something labeled an invoice register that is different than if they have things like surance molds all kinds of fourteen documents we did get a list of acquisition loans those are equity loans included in that list didn't put it in the acquisition for a loan they had a very specific document that listed acquisition loans and this wasn't in it furthermore they had never disclosed that the closing was underfunded and so there was no reason for the defendants the plaintiffs to be suspicious that the loan that was disclosed was in fact an equity loan kind of leans toward raising the jury question because it's conspicuously not on that document but the only other document as i understand it that you got after seem that list of acquisition loans was this two thousand and fifteen ledger or whatever it's called say one other thing about what was provided in two thousand and fourteen that made it deceptive again should be a jury question of whether we should have known something in two thousand and fourteen is that in addition to the acquisition loan list that  loan they also the plaintiff's attorney or defense attorney provided a letter that set out the historic liabilities of the l l c but consistent with the acquisition long list attorney boortz did not mention the whole home lo and so under the circumstances there's there's not a way to put you into it if you don't even know it's underfunded to begin with and there would be a reason for a bridge loan and knowing that loans are acceptable under multiple circumstances as defendant points out under the circumstances here there was no reason to put two dollars and two dollars together and that's again you don't have to mere suspicion is not enough to trigger the statute of limitation under the circumstances you have to know the facts of the fraud have to be provided and here the evidence shows the facts of the fraud that is the equity loan we're actively conceal why else would they give us a list that has the acquisition loans in two thousand and fourteen dollars and omit the whole homes li fifteen that said here's an updated list of the acquisition loans and boom there it is that there was never anything like that just the other ledger stuff that's what i'm looking at on your one hundred and fifty but my understanding is this is an acquisition is a long list and it's listed there and yet so what do you mean  understanding where does it say that where does it say i've got i've got it the acquisition m g d c c b acquisition l l c paid in vase invoice register i've got the invoice the description all of the things that had to do with the homes hold homes acquisition i turn to one hundred and fifty i've got the same thing says the same exact stuff only thing is it does leave there's no difference except they leave off the payments think listed on the acquisition list or the acquisition list your could talk about and going to look back to my documents and see i'm into my rebuttal time can i come back and tell you that on the rebuttal time when i come back but i i have that and i do want to say the texas lawsuit is was over something entirely different and rely on judge simon decision yes that and to the extent he mention it's merely raising a suspicion and a suspicion is not enough because the court feel have a thorough czerny for the defendants i st want to start with the notion i think the court's well aware of the discovery rule does not protect somebody it sleeps on their rights somebody that has information that has a suspicion and as plaintiff's counsel emitted there's been suspicions throughout this investment that's what caused the lawsuit in two thousand and eleven in texas conveniently they say it's only to get documents they didn't sue for an accounting they sued for fraud misrepresentation probably generally called a notice standard that i'm suing you not much in the petition itself but they had suspicion of fraud because they sued for it so either there was this admission that we violated the equivalent of civil rule eleven and we didn't have a basis for it though that the reason they sued in texas is because they suffered harm they believe they suffered harm and those were the claims that they believe they had so in two thousand and eleven they admit they had harmed him if they had suspicions it's not clear w texas instead of where the lawsuit had to be brought in oregon but that's where they chose to go after the case was dismissed they'd been appealed it whether that was a reasonable decision to continue to pursue that in texas or refile in oregon a question can be 's two thousand and fourteen at that time it may have been thirteen that document showed all the payments to hold homes three million six hundred thousand now it tracked the investor updates that have been provided already joe smith pointed out that list you know gets five loans and the whole home thing course is not on there and they say it should have been and obviously had you put it in there and we would have brought suit in twenty four dollars to euro so this is part of the series of entries by account which it does with the whole poems on the prior pages it also lists workers comp payments so it's a it's a different summary of payments that have been made but to answer your question directly it's not on one hundred and sixty two because it was not an acquisition loan it was not a loan that was part of the acquisition wasn't an assumed loan it wasn't used to purchase these properties what was best described as mr coo but jack had the amount pledge from investors he knew at that the minimum offering remember was three million dollars maxus fifteen million dollars at this point in time in october two thousand and five he had six million dollars in the door he knew we needed to another three and a half to build a close and he had pledges he knew that money was coming in to hol advance that money and zero interest no security given and whether it was a bridge loan whatever the term is the fact is plaintiff knew about it much earlier i mean may ask you a further question which i think will help judge watford and me it's now council's argument that when these documents came again in may our skees me in january two thousand and sixteen for instance that there was e r one hundred and fifty was sent to them yes and that the now that document which we have a c r one hundred and sixty two reflected that home the hold home's loan was in that in other words so it never was in another schedule like this then listed if i understand as an acquisition loan like you're right sixty five you know that that is correct so the best they got was the same thing court to focus in on is the documents produced in may of two thousand and fourteen at some point in time plainness which the tourney's mr johnson came on board ms johnson followed up with a letter in two thousand and fifteen that says i've now spent time with the documents you provided last spring and serious questions remain and so it wasn't the acquisition alone that they were focused in on it was the documents that they looked at on summary judgment we were arguing that the whole loan to hold bridge loan whatever term we're going to put on it that was well known it was in the investor update and at that point time in february two thousand and six it showed a one million and five dollars was still outstanding as of briefings because it was only in the responsive pleading that we understood what should have started the smoking gun and please understand full doesn't concede that there was a fraud so it's a little bit hard for us to say they should have known something happened at this point because we don't concede there was any fraud at all what our argument is is that plainest tell us if your students texas in two thousand and eleven for fraud how can you now come back in two thousand and sixteen and sue for fraud and then we started getting the story of well it's it's because a deal was undercapitalised well i think they're back off without a little bit now the focus is squarely on this whole loan and their argument seems to be that this loan that was made was repaid cooper check to hold homes before money went to the investors and before other creditors were paid it was only late in the stormy judgment briefing that this argument now appeared that well it was not listed as an acquisition loan it was confusing to us we don't know what it was it's evidence of more fraud but what what the discovery rule requires is a plaintiff act with diligence and if they don't if they get documents in two thousand and fourteen and don't review and that's in the record that the plaintiffs say i don't recall ever having  these it in spend any time looking at it their attorney said months later i've now taken a look at it what would a reasonable prudent person do at that point they would follow up with and ask further questions and that's what plainest did do in two thousand fifteen got more information and didn't sue right away the bridge loan was the terminology was used in feb th but the lawsuit wasn't found until february two thousand and sixteen and so when you look at all of these factors the suspicions remain and they allege they've been harmed in two thousand and eleven but they just didn't act on it and a plan it doesn't need to know the exact elements of their claim they don't have to know each and every fact and just if you agree with your point that at this point in time they want the defendants to admit fraud and that's when the sacha limitations that start it's nearly like as we discover something else the statute is retriggering somehow and that's not the analysis that's not correct it's what would the person do when they get this information so if they're confused they would do like what they did they would follow up with questions but too much time passed between getting that information and following up just ask a question on the in this reasonable person standard does that become a fact question that we need to send to the jury or as judges we can look at this and say as a legal matter we need to determine in our own minds what a reasonable person would do but you know that's i think any time a judge hears reasonable and us immediately think fact question and that's fair but if the jury if a reasonable jury could only reach one conclusion and that is that they had this information and it didn't act on it in a timely manner then the court can decide on a summary but it is a normal summary judgment standard and if there's any evidence that any juror could come to a different conclusion then we need to go the other way on that that's correct and that's why judge simon looked at the two thousand and eleven lawsuit and said plaintiffs you're you're saying it's a different you don't remember the facts you sued for the same claims you said you were harmed but simon didn't grant summary judgment just based on the two thousand  lawsuit he said it is possible reasonable jury could reach a different conclusion however when you look at the two thousand and fourteen ledger this is sufficient remained and then how quickly did they act on that there's only one possibility and we don't think there's there's any other conclusion is only one that a reasonable jury could reach well not only that but didn't judge simon say ok based on what we have in front of us we're not going to make the statute of limitations run from the time you filed the suit in texas because at that point you're only looking for documents and you say you are looking for documents so we're not going to have a go there but we're going to look at what it is you were really talking about what you were really after and now you get documents you asked for these documents and here's the smoking documents which is the smoking gun that you now say is the document which makes a difference and yet it's the same document which you say we couldn't have been a smoking gun back in two thousand and fourteen isn't that what he said yes your honor that's what he said unimportant in the texas lawsuit documents were produced all the tax returns that were available were produced profit and loss balance sheets everything was produced at that time and then when additional questions were apps documents were further produced so but i believe that's why judge simon gave the plaintiff the benefit of the doubt and used a later date although i submit that this co could still look at the texas lawsuit and say at that point time you were well on notice organ does have a saving statue brief this before a judge simon whether it's relevant to this court or not it really it's enough another element that they could have refiled in oregon and we think that's what our plaintiff should have done once they sue in the wrong jurisdiction and they're informed of that by the texas court they should have gone to oregon and refile the fact is they went from two thousand and eleven and till two thousand the documents that we were just looking at before that were indicated to be identical kind of judge simon found were identical and look at the actual dates of the entries at the two thousand and fourteen document and r fifty five is dated eleven o five is when the loan occurred that's after closure it couldn't have been an equity loan after closure closing occurred in october so in two thousand and fifteen for the st time looking at the r one hundred and fifty the documents reflect ten o five and earlier date for these loans which is the time of the closing which again raises the spect of was this an equity loan and what happened is when we got these we asked for more information and if you look at miss johnson that letter you wait a year i mean after you got your fifty or if you waited a year before you asked for you keep wanting to avoid that phrase isn't the fact of the fraud this race is a suspicion of the fraud the documents reflecting the fraud came in two thousand and fifteen when we knew that there were is there was information that this was an equity loan so we have that this is when it starts running this when we have we know or should have known guess it doesn't say it it's an equity loan and it's against the right that give yeah but just a minute i want to ask you a little bit about that are you had in front of you in february two thousand and thousand and five why is that of significance loans enough themselves are not in permissible simply the equity loans well like that it doesn't but that doesn't answer my question the information is the same stuff you knew is the same it's not the same it's a loan that occurred after the closing and therefore it could have been an equity loan furthermore as you can tell there's misrepresentation going on because they were reflecting the wrong numbers you'll see the numbers change even though everything occurred these loans occurred in october they're clearly disclosing they're clearly concealing information and not accurately portraying it because the numbers change so it's all no one has nothing to do now with  to you in june two thousand and fifteen it was the same as well the one hundred and sixty two lists acquisition loans and it doesn't list this one and it didn't in two thousand and fifteen either but we had information that there it was equity related how did you get it they gave it to us well when when you tell me two thousand and fifteen and furthermore they gave us information that the deal was underfunded but  question it's easy to look in hindsight now we know it's just like looking at an x ray where you know there's a dot because there's a malpractise case you know what you're looking for that we didn't even know what the question was again we had suspicions you'll see the letters are there we think something's wrong