our final case for argument today is  good afternoon your honor robert krisna for the appellant here i would like to reserve three minutes for rebuttal flaming or this is in my experience one of the stranger summary judgment motions that i have been involved in for the reasons that i think are fairly obvious the only evidence if you will that supports the summary judgment  granted by judge or you again are an unsworn allegations that were denied by my client and on sworn allegations from a not a third party any objection to consideration of exhibit one the summary plan description correct your honor no objection army you did not object to that correct exhibit one is the summary plan description your honor we have object to it but we have checked into the allegation and the statement but that that is in fact i thought you said it straight i thought you said it was speaks for itself and i didn't see any objection to its admissibility not to it not to it's in this ok that's correct ok and and looking at your summary judgment opposition papers i was looking in there for the evidence argument that you were relying on on appeal you said repeatedly that the admissions by the insurance company or not binding on your client that's true enough but i didn't see any objection that they were not admissible you are we have objected to them in their entirety well you stated a ground and you're raising it you raised an  ground after the district judge granted summary judgment and and now on appeal and now at least in my experience there are plenty of times when parties will submit  so given the absence of this hearsay objection that you're making now it's hard to see why we shouldn't treat this issue as forfeited well again your honor i think of the intent and again we're bound by the language but in each affidavits with evidence and did you raise the lack of sworn testimony in the district court yes you are in fact well the rule itself i believe addresses that issue in that when it states that pleadings it does permit for pleadings to be considered but implicit in that is the is the concept that the pleadings are not denied and we did in our brief in this court cite the caulfield and associates decision and also the the sarah versus asher on pages seven and eight but in our  the deficiencies in the information that was beyond and what would i be hardly mistaken if i believed that a move and it's not obligated to submit  simple evidence that the summary judgment stage it and may rely on facts alleged in the pleadings you know on it only if those facts are not controverted so yes they if if there are admissions in the or those of the or the delegations in the pleadings are not controverted then yes those those can be considered by the the district court in granting order nine summary judgment but here in each of the instances you see federal rule of civil procedure shifty six c four no longer requires the formal affidavit to be submitted but instead it allows it to ration should be used to oppose a motion for s absent from this record no no such declaration was submitted by the by by ms did move here no such declaration was submitted even  star although as we we've argued here and any of their admissions or any of their of allegations in their honor pleader complaint would not be admissible against my client we did note just simply note for the record that the that the policy at issue was paid for entirely by  i think that i think that is it here on it's of can you tell us about the current status of the state court efforts to reopen the divorce well actually i'm sorry hundred that we did submit that additional evidence related to the pendency of the  of the state court proceeding and what they actually sent us right now it's a waiting in some kind of bizarre twist of fate it's awaiting the ruling of this court for reasons that i can't very accurately explain it was it in the trial court still include oh it's still in the appellate court the appellate court made a determination that the trial court had urged but it is awaiting the decision of this court for some type of analysis of reza judicata effect and i must admit to the court that i didn't understand that i note that i'm already down to almost two minutes so i'd like to reserve those for a affidavit i don't disagree judge of maybe's something like that would been helpful but and that's why we have this rule that if there is deficiencies need to raise them so they can be addressed at the time and i'm sure they would have been dressed at the time nothing to consider your honor is  that last starr was before the court it was a party to this action and it made certain pleadings and representation is to a court and it's submitted documents to a court so wasn't like it was coming from some random third party they were present before the court right but i mean the  that was made by ms wanting her counsel that those were not binding on hers is correct may well be beside the point and it is at least in the absence contrary evidence but i confess i didn't quite understand the extent of your reliance on cell attacks and the ability to move for summary judgment without evidence at all when you are the party that as i understand it would have had the burden of proof on the issues presented by the motion that's the scriptwriter another thing to consider is with respect to these objections that are being made now the appellant actually admitted in their pleadings almost all of these facts  know your honor i don't believe we directly cited their admissions as such but as you know this can be upheld on for you know on any grounds well if if there was a fair opportunity to meet them and that was conceded that emma was entitled to the basic life insurance proceeds so in order to make that concession or you know certainly have to concede all the facts that would lead to to that conclusion how it's possible for a party to concede part of motion for summary judgment miss one did not cling to any facts that would present a genuine issue for trial there was only one additional fact she pointed to and that was that mr cho that had paid for all the premiums for the supplemental amounts not that it that both of those policies were received govern in fact she consistently denied that that he did in fact have two policies one of them was paid for by the company that was the one we conce d in the early course of the proceeding and the other one is the one that we dispute because it was paid for entirely by him using marital assets which is why this is still part of a an ongoing fraud proceeding or or an attempt to reopen the divorce on the basis of fraud in all other respects your honor we have here basically a record that does not support a summary judgment for