right and based on the potential jurors dixon a defect we submit i submit that the state or disagree or did not have subject matter jurisdiction in this case because there's nothing in the record to identify the citizenship of the members of the trust and as stated and how and in the johnson case i think corporate entity like  trust the citizenship of the members needs to be shown or proved and the burden going to bank of america who filed the lawsuit in federal district court based on subject matter jurisdiction diversity of course is limited to presumption is against federal jurisdiction and the party invoking federal jurisdiction needs to prove that diversity has been met we submit that diversity has not been met in this case your honor  blank is that incorrect that that's correct and at this juncture i submit respectfully that there is nothing in the record as to the citizenship of the but at this juncture because there's nothing in the record i submit that it would just be appropriate to be more prudent at this juncture just to make a and they keep the judgment and dismissed the case because again the underlying underlying jurisdiction verses are section was never satisfied or nor met by bank of america in this case and filing in federal dis the notice of default and that goes back to the underlying original semino as the parties with about a supreme court held that that's what the bank could have done they could have just paid the amount as indicated on the notice of default and claimed a refund or saudi refund for whatever the activity that they didn't want to if they didn't want to pay the entire amount if they didn't want to pay above and beyond the super minority amount and they only won the sup that your honor is in all of these cases with a payment of i believe a nominal amount of fifty dollars or one hundred dollars the ledger would have been provided and the trust however per the letter it said the payment of the account costs fifty dollars so with the payment of the fifty dollars the statement of account would have been provided to the bank to mouse power and that the statement of account your honor would basically show it would be a ledger it would be a ledger identifying all the months of them in quincy late fees and what not that's the statement of account they would get the statement of account which would be a running ledger and they would calculate the nine months by multiplying each month the assessment which is always the same kinds night and they would deduct out they wouldn't factor in the late fees or one so to answer your were those that knew about a supreme court case when we talk about that time super we talked about that they can put the condition in the cover letter that never occurred in this case nor any cases involving excuse tender there was no cover letter it just started with their along with a motion to serve boston friends trust by the publication of the bank of america made a diligent search to determine who the trustees of the trust are bank of america diligently nor any other public source says who the trustee is and all further know the boston springs trust files are typically of interest to parties and both the district court and in this court that claim no trust holding an interest and the trust i don't know it to make of that exactly except that they've been withholding the identity of their trustee and i'll further note that in the complaint america alleged that based on what we know the trust of the nevada trust and boston springs trust admitted that allegation in full only hazard and did not dispute the diversity jurisdiction there's a case this court issued in  apply here where boston's brings trust did not dismiss did not dispute diversity and has never given us any way to determine the identity as trustee it would be entirely appropriate to just dismiss the case at the very most there should be request the bank of america sent to determine a super priority about our understanding is that what yes was willing to send back was a statement showing the representing that for fifty dollars you would get a ledger that basically sets out a monthly amount and i understand his argument raptly based on that how we can reconcile those two positions and i think based on what's in the record the undisputed facts show that they were not willing to provide the necessary statement account to bank of america and that's consi with their policy of rejecting super priority checks which we've discussed a little bit so far but kelly mitchell's testimony is very clear that she was the principal of these us that miles hours checks typically included the phrase paid in full and she what it except any check for miles per hour said paid unfold because she thought this was a condition that concerned her and she would respond to miles hour and tell them to take the phrase off however than about a supreme court held in the diamonds birthday so that was an acceptable condition to include so what we know year is that  this case actually it was said by miles are saying the miles hours attempting to pay the banks obligations as a st date of trust holder namely the nine months of assessment preceding the notice of the women assessment and so from that is kerry's guys knew we wanted to pay the super priority them out and wouldn't take those checks and even if were their position is just that condition was a problem that's not enough to make it acceptable policy under binding about a law his is opening statement and bank of america want to preserve a record saying that it was sending an amount to pay this super priority portion to preserve the st two trusts and it was entirely enti is recognized an early trust that a known policy of rejecting tender is sufficient to excuse the obligation to make a formal surrender and all the evidence here shows that there was such a policy and it had been made known as some point by a c s two mph and half a bank of america the district court relied on just which was the best of any and it had at of trial testimony that contains some conflicting statements and to be honest i don't want to speculate exactly what the nevada supreme court thought was significant testimony because you have any and doesn't say that which parts they thought supported the findings but here reading the only doesn't doesn't as maybe having the record kelly mitchell's very clear and you have to make a case by case finding based on the absolutely would have shown the super priority amount i'm reading here and in the letter at that time this is after a closure we will provide in nine months to proprieties name statement account and then the bottom of this statement of account will cost fifty dollars so if the bank would have paid fifty dollars it would have absolutely be seen as ledger a statement of account that identified the super prior to the amount so there's no question the bank would have received challenge to jurisdiction can be raised any time any time in the case and it was the bank's choice bank of america to sue the trust as a trust and not to trust the company might be would have been very euro guy would have