involved my client was facing a almost a twenty five million dollars a fall judgment garnishments for taking place the company was on the bank brink of bankruptcy five thousand employees it was a tough situation and my cast was pretty formidable and that was not only to ask this court to stay the matter money that it borrowed the question is what was the fallow you of the franchise assets that were sold in the southeastern united states as a credit against whatever is d you know that's like i mean when we're talking about a whole bunch of millions of dollars and you said that it's millions of dollars off when you came back and seeking assistance from the court and seeking  hanging in the balance and ever have not having any notice for almost a year what you got but what you get all this really got a letter as i understand it from opposing counsel after the settlement negotiations broke down saying basically we're going to stand on our legal remedies two things was present the clerk has no authority to enter the hall this or some i mean i practiced law before i became a judge and i'm very empathetic to the situation that your client and mr miller created here but it seems to me that there is judge march on pointed out during the telephone hearing that there was an obligation on counsel to do something affirmatively even if it were simply to write a letter back saying you know  much later during that time there were nine lawsuits pending in the state of florida where we appeared we've bigger she litigated this action and the only issue there was the deficiency that was the same issue it was being litigated in california although was not supposed to be litigated everybody agreed that we were going to litigate that issue in florida as late as december the same month when they without one shred of notice not one phone call not anything we were scheduling hearings  letter in april they were going to war here settlement negotiations have broken down we're relying upon our legal remedies and sure enough you know the fire fight starts in florida but your client knows there's a lawsuit that has been filed against it in the district of arizona it just seems that any prudent litigator at that point would do something your honor what can we say of course mr miller acknowledge and and the defendant still has a substantial amount i'm satisfied on his judgment isn't that prejudice that the district court may properly consider in the value ladies and merits under the rule  some evidence because the only evidence before the district court clerk was very properly the plaintiff's affidavits and declarations of stablish ing the four agreements the formula under the agreement for calculating principal and interest and what response to your question just coming out is that we know that we have retained an expert to do this very casting and may i point out the obvious thing at this moment in time the parties were litigating that very issue with experts in florida that was all they were talking about in florida  district court abused its discretion for not taking into account when hearing evidence that they never presented to the district court and otherwise not doing things that weren't requested of the district court secondly their consistent consistently failed to follow the rules about the district court rules  there's a meritocracy founds whether there is a culpable conduct and whether there is prejudice to the plaintiffs each one of those has to be proven by the person seeking to set aside the entry of the father and each one independently sufficient if not proven to keep that motion but scuse me the parents have tried to argue another issue as well here on the entry of the father and it's quite important to clarify they've argued that then they've argued that they've made an appearance under the case default judgment doesn't turn on the word appearance it turns on the words plead or distance and it's been interpreted to mean file an answer within twenty days in accordance with well so there's no question but that that that has wanted to add to the record yes that's correct and these were declarations that were not before the district court correct let me explain that because it's sort of a two part answer one of the declarations i believe was submitted to the district court at the time they sought a state from the district court in other words after the district court's decision that's at issue here the other three were submitted for the first time in this court during the newspaper's meetings before this court none of these four declarations that we strike were part of the record and had it under review at the moment they did not move to augment the record they just put them in and we've moved to strike them likewise with the light report that wasn't before the court at the time decision either on the issue of meritorious to towns the principal point here is that the district court held that and found correctly that liability wasn't disputed interesting issue legally but the point is that entry of the fox doesn't involve damages the damages don't matter at that stays it's only at the judgment phase that damages even come into play and even then it's subject to a totally different scheme than the issue of some certain and i do those in that order unless someone with like then a different order i add one other small issue and that's the issue of noticed although it isn't there's no it's not an element of sixty relief but it's been discussed so extensively in the papers in here that i thought it's worth touching upon there is no notice required four and three of the font if there's been no appearance there is no notice required for default judgment for any kind of proceeding whether it's by the clerk or by the court it doesn't matter even if you go to the directly to the district court to seek entry to seek the fall of judgment you do not need to notice to a party that has not appeared likewise with the entry of judgment issue aside that it all turns on the appearance issue and here as has been noted there was no no filing whatsoever with the district court in this case so the only real arguments are what is the changed life here in setting aside a default judgment that was rockford food that's the only time it's ever happened in this circuit under citing livermore rocks you could actually didn't involve startlement but it was quite a different situation from here you had a tru very same proceeding where she had been appointed trustee and he had been before the court on several occasions in an effort to find counsel and he'd been given till a certain date to find counsel and then we stood in an adversary proceeding arising out of the same exact sufficient standing alone and in part because there had been a letter actually in that case two letters from the other side the plaintiff's counsel saying look we're going forward and in that case that the letters expressly reference to past here they simply said we're going to of factual character based nations that were just made because there's not much in the record about those proceedings so we've limited ourselves to what was in the record but in fact they were different they were christie doing they were foreclosure pr were necessary to foreclose in the published under florida law there needs to be foreclosure proceedings and in that in the context of that you can raise the deficiency issue and there were deficiency hearings one point scheduled my understanding is that the issue of fair market value was not being litigated at any time during these during this proceeding in fact my understanding from florida coun themselves to some certain the issue of course is whether the use of the sale price versus the fair market value was appropriate in the disc in the dispute over that does that render it not as some certain there's no  say what their market value should have been or even what evidence they would have presented on the subject i just think their evidence and the vast posture in terms of that the numbers differ by millions for just wasn't there  something that that was what what they said well that was in their briefs actually the briefs is what says that was a million but millions of dollars difference and that was based on the the lawyer report which was not before the district court at the time the district decision and there was no other evidence before the court it was just an argument by counsel that there hadn't been a fair market determination that was the only thing that was actually before the district court at the time