doing you're right ok let us know if we can do anything let me see right at the outset if i make absolutely certain i understand your argument you're not arguing that the promissary notes are not or should not be counted as resources onder the s s i resource accounting rules right correct you are saying that they should not be considered under the trust rules well because they are resources as promissory notes as at the palm section eleven twenty dollars to the two hundred that section has to do with identifying resource well and no answer my question you're saying they should not be considered under the trust rules i'm saying they shouldn't be considered as trusts resource as trust resources because they are good or does no has no resources and you want them considered as new resources i gather so that you can rebut the face value correct so you're not saying that they should be considered at all no you are conceding they are resource absolute but they are the nomination should be as promised very notes and not as russ like device that's that's not arguing is actually quite simple because once they are treated as no resources they will not be considered  trust like devices under will on except that so that the secretary or whatever it is didn't consider them as notes and record and leave immediately to consider them as first like device correct ok really section so i mean you seem to be in a bit of a catch twenty two in that respect explain to me why you're not well because if they're treated as no resource then i am well not to reset promissory note or  get into if it was a resource before it's a resource now so that it was the cash to build the transfer and it doesn't lose its character is a resource simply because it was france secondary question that is the question before this court whether or not i bona fide negotiable no can be treated as a trust like device i say no it has to be treated as a promissory note not before this court but i think what what your honour's are getting at down the road why am i doing this because as an adjuster resource and therefore they are ineligible but the secondary question which is not before this court and there's no nothing in the record about it is that i could rebut the face value of the no and prove that it has no value but we're in the record below is the evidence that you've reported that such that we should hold the trial court heard in finding that you had no likelihood of success on the merits all i'm me that the trial judge heard in not finding that your defense was likely to succeed well i guess it's the the now ness or broadness of the issue the issue that i raised and that i think the trial court considered is whether or not a promissory note can be treated as trust like device or whether or not under the comparability provisions of the medicaid act it has to be treated as well except of the trial court did not consider eleven twenty there to twenty he where it says that the s s a will not consider these arrangements under trust rules if they would be counted as resources under regular  as trust like devices i suggest that might be wrong because of the provisional palms i just quoted that if they own her a if there isn't a range meant that would be counted as a resource why you're here i guess that's fine as the whole point of my argument well now that's what i only have a page and a half here written as a speech and really we've already been for a because that is the point of my argument under the comparability provisions you have to use a no more restrictive stand the palm standard is that they if they are counted as resources under regular s s i resource counting rules we will not consider them to be trussed like devices to me that is very clear and i think that the trout were just errored on that one issue other than that with the other points for a plenary injunction i point out in my my brief i had another case before the judge thompson allez in which he ruled in my favor on those other points and  i really believe that the same would apply in this case that every day that goes by and these appellants are to the die medicaid benefits is a day loss of medicaid which has been held to be irreparable injury that the harm to the because there was one section of the palms a presumption that i did not touch on in my briefs but and in reviewing all of this for all arguments that i noticed that palms eleven forty dot three hundred d three b raises a presumption absent evidence to the contrary that a written promise or a no is both bona fide and negotiable that should be compared with the presumption adolescent twenty two twenty one which says a bona she have to determine whether or not these or a bona fide notes now because absent evidence to the contrary and there was a to be given the opportunity you would come in and you would see who is the moving party here they're moving for the women are you would have to prove likelihood of success so you come in with your promissory notes that that on the face of them seem seem bonafide and they would have the opportunity to come in and show they're not right they they would have to present evidence to the contrary that they are and if they're not bonafide then you're you would concede you're into the trust like devices and i'm in trouble only when you're in trouble really an issue is whether these people can get into arrangements under trust rules if they would be counted as resources under regular s s i resource counting rules i was unclear as exactly to what that refer way it says that a bona fide no is treated as a real one i'm not asking about the note specifically i'm asking what are the regular s s i resource counting rules what is the complete universe that would encompass that i'm unclear i resource counting rules what are the regular s s i resource counting rules there at eleven twenty dot two hundred like the whole section deals with identifying resource and that's the complete set  two hundred in the pot ok thank know my questioning to do with it promissary notes are counted as resources under s s i resource accounting rules yes yes i suppose they could yes yes they are yes so under palms to twenty g why do we even get to the question of whether they should also be considered under the the purpose of that section is so the same resources not counted twice correct so why did the secretary or whoever whatever the name is immediately leap to the trust like device rules when these or the nominated as an a on their face appear to be bona fide promissary no because the facts of this case don't make them just because he put a title on a document does not mean that that's what that is he's not rive them is duly executed she described them as having a certain term and a repayment schedule and interest right it only seems like an investment these plaintiffs children spontaneously needed loans in hundred dominations of hundreds of thousands of dollars at the exact time that the legal right i mean so what if what if the the elderly folks the lanzas in the sables had it gone on a had spent the money in vegas and they were down to one hundred thousand what would they not be entitled to medicaid or would  them in las vegas if you can document that extended and lost that you lost and i say if i suppose you can get away with that i've never seen that situation but you can't give it to your children that's fine but what you want is why is i guess i'm i'm kind of shocked that you're arguing that the timing is the problem here i i would be more interested in well they said this is a note with an expressed term an interest rate but guess what they're not paying back this was some sort of a show of fraud or  sham transaction if it's a legitimate transaction where the the children are repaying the notes then it's just like a business deal but obviously they did it for the purpose of accessing the large jets of the state people people do things all the time to access the large just of the state wire that why are these families any different because congress specifically made holes that the purpose of the c r a was to limit people accessing the largess at the state inappropriate y you're supposed to spend down your research resources so you go to las vegas and you can and that's ok no i mean it's not going out a very good hypothetical i don't know about las vegas but you you said before you could go to las spending it out you can give it to your kids you can put an addition on your house i guess to go to las vegas if you can document that you gambled the money lost and didn't have any winnings offset the very same children  and they could have taken them in their their grandkids on a thirty day cruise around the world and spent the money that way and that's ok but the but the the the more conservative apparently judicious thing at least in my and why did you leap right into a trust like devices when you had promissary notes before you because the transaction this is done at the county level and to the county workers this transaction appeared to me a way do not appear to be real real world real note guess what on the face would lead you to believe that they're not real not because why would the children need a one for the exact amount of excess resources on the fate of medicaid application so yes actually you're back to suspicious but but but suspicious does not mean though the motivation does not necessarily mean that they're not bonafide no we don't have any discovery duty and she said that we need to look to see if there really are few sorry obligations if the children really do intend to manage the money for the end of it at the parent but to put to judge barry's point we're not going to look and see because there was a determination that this is like a trust me i'm not suggesting to you that that where there's smoke there might not be fire but that would seem to me to be a matter for discovery and you have every right to try to to  oppose their defenses i mean they've conceded here at oral argument that these are resources and these are countable and they're going to try to fight you by saying that they have valid defenses and in the commissioner has every right to dig into this and say well let's show what's the stream of payments show us that this really is a valid transaction but then we have to at least go through that process before we really know what the right answer is in this case yes and so you don't oppose conclusions of law and judge thompson into decisions has justified why she's done this she says that it does appear that there could be trust involved in these transactions and that maybe they really are trust i didn't think that judge thompson had made that determination i think she was only denying the preliminary injunction weird we were special to start discovery when he was found they were trust like devices right became was that not a premature  find it now that normally you would go have an administrative hearing that these plaintiffs chose not to an administrator's hearing all the facts to be laid out testimony would be had an administrative judge would determine the case these plaintiffs chose not to go you use the word scheme and you use the word manipulation flamma tory words in my view in your papers and you say that if this were allowed the floodgates would be open for the temporary transfer of resources to gain eligibility to medicare caid without first spending down resources but what appellants concede that the notes should be counted  resources they're not saying they shouldn't be now whether or not they can rebut if there is such a thing they can rebut the value on the no they're saying they should be counted as resources so they're not they're not looking to avoid that's under thirty ninety six p always it just struck me as a little ironic reading the briefs that the state of new jersey is setting and perhaps it's dictated by federal law certainly here remotely or expert but it seems ironic that the state was setting up a situation where people could readily access the large just of the state and when people readily accessed the largest of the state the state came back and said here we don't have the money for all this well then change the law to make it so easy to access for just the state isn't that your remedy rather than rather making these distinctions congress an act of the right order to tighten up the loopholes and they did not mean for people to give their friends and family money to hold for them while they become medicaid eligible if you look at the i think what you just said earlier they could put an addition on the house they could right so so they will be having to foot all these bills themselves until it what is the what what is the average length of time for something to get trial in the district of new jersey i don't even want to think you just a lot of years ago but don't quite seriously you're going to if this were to go or if it does if it doesn't whatever happens you're going into discovery here right absent a motion successful for summary judgment or to dismiss they'll be tried i meet these people have to exist but their existing within the nursing homes or the medical institutions in new jersey cannot throw a person out you can't run them out you have to give them a place to say yes they have to pay or work out an agreement with the nursing home to wait for this matter is resolved without this week but i'm interested in what there's a few things i'd like to rebut one telling it sable is at home and even under you know even if there was no appeal or no trial court actions on this matter there are no retroactive tells us there's no such thing under the i don't know how we're supposed to know in the court of appeals what the situation is the eleventh amendment prevents this court from awarding benefits more than thirteen ninety six a thirty four would permit are all all of those deal with objective information not only are we think they're just holding it because none of that is in the record we think they're just holding the money that's not in the record i think this court needs to rema and there are eight objective tests for that and we meet all eight objective tests that so the people can test evaluation for purposes of eligibility correct thank you thank you