of being obliged for the may rant which would have kicked it up again against a security deposit of about fifteen thousand dollars so why in light of all of those things  material well there isn't a supreme court gave us a blueprint for determining whether i understand but i pretty much gone down the factors and if you want me to be more specific i would add all of those things assuming that foundation applie factor the extent to which the major party is not going to get the benefit of their bargain here it was proved at trial that that extent was fourteen days of missed rent they had a reasonable expectation that the record be paid on the tenth on the fifteenth the day after the lockout the money was there full rent plus costs plus fees were offered you have to see the problem is that the bus fleet never say you know look i'm strapped right now i give me until the fifteenth i'll pay up then you would have had a much more compelling case and soon that they produce financial documents which show i believe something in excess of four hundred and twenty seven thousand dollars in age payables as  the tenth and they give no indication that they're they've got the wherewithal or will use it even if they have it to pay rent and any time so from the landlords perspective it's got absolutely no indication of ability to pay or intention to pay at any particular time well who actually did so i'm sure it was across the way that they were going to pay i agree they didn't get to specify or did it by the same token but we never saw from the landlord was you know what we look at your financials now because you're going to call the last communication between these parties was that the landlord was saying go ahead you can send us your financials and we'll consider them as we consider our options they didn't get those financials and say you or could have simply file the three d action they would have been in court within five days that's what happened in foundation development what would have happened all of this evidence would have come out there would have been the same evidence that we provided the trial the court in the f a direction would have learn the money was there sure should the tenants have been more vocal about what they were going to do and when they were going to do it they didn't big mistake but the whole concept of foundation development is do we let the forfeiture of long term commercial leases happen on those kinds of mistakes or do we have to impose some kind of equitable and standard i'm wondering like that happened the supreme court said this was a public policy reason to sue ensure the stability of commercial term good record right there was a long term good record there was when were seven hundred thousand dollars invested in these promises that had just been paid off like before the lockout we're dealing with a landlord who had no history with this tenant no history with this property they bought the property three months earlier to park some money in a ten thirty one tax exchange because they were looking for apartment buildings to invest and they had no real investment in this property well i understand the purchase probably a pretty pretty sizable investment just like the tenant had a very sizable investment so they were operating out of there for over six years without a problem this was not a mom and pop widget story this was a seventeen year old company that had fifty five employees put out of work  would have come to about three thousand dollars that's what it would have taken to make this man more whole and instead we wind up with a dead seventeen year old company thirty five people put out of work there has to be some policy t facts on the fifteenth they had the money and they offered it in for all costs all fees were offered but the trial court chose to ignore that because the landlord wouldn't have known that on the day before when they turned  changed the locks on that day she found yet they may have cured it all the next day but as far as the to the landlord knew this was going to be an indefinite delay in fear well i defy anybody to look at those facts factors in the foundation development case and show where it says what the landlord know the extent of the delay was going to be again put in the context of an eviction action if instead of locking them up on the twenty fourth they would have file money we've got a competitor who wants to buy or accounts for two to three million dollars and is offering to put up by we have all kinds of ways to take care of their sewage should we have taken care of it before absolutely probably not a day goes by it is not what the principles of this company as to why they didn't do that but the point is the forfeiture could have been prevented if it had been f u d action that would have had the power to go to court show the check show the offer and it's not and does anybody really think the court would have said no we're not going to give relief here we understand you've been there for six and a half years we understand you've never missed a month's rent we understand you're here with the money but that's three thousand dollars this landlord has a right to rely on their contract so we're treading  business i think that's exactly the opposite of what the foundation development case was trying to get at that fact would have been shown in the f u d action are we really going to hold the landlord to a lesser standard by using the more direct to do a lockout that may twenty four hours later kill a company they may not know some facts and if they're wrong they have to take that risk because they have every right to go to court and give that kind of a chance to make that case but i'm going to show up and offer this reform are like the counsel for the landlord the money how could you not just agree to take the rent we're going to pay your costs within a period piece you haven't been harmed one whit but the result we're refusing that we don't like your financials we don't want to attend any further landlord shouldn't have that kind of power and the arizona supreme court said that or shouldn't have that kind of power there has to be significant material breach to justify a complete forfeiture and some point that tenet has to have their day in court and if they can't because they've taken too quickly then after the fact we may be looking at those factors but if they all come down on the side of the  ours i'd like to simply address one point that was made in the trustees reply brief obviously we were not able to address and writing and it kind of goes right to the crux of his theory is that somehow the landlord was assured the rent would be paid and this post lockout tender was really a a late payment or evidence of a late payment as opposed to a non payment of rent the trustee in his brief on page four states that this magical game is both a distinction without a difference and an irrelevant one under the law and this is his that it intended to pay rent judge hollowell heard all of the evidence and we do dispute that particular alleged factual finding we do not believe that was a factual finding of judge hollowell on page eleven of our opinion judge paulo l states the court finds therefore that mere pad reasonably believed in april two thousand it was going to be deprived of the benefit expected under the lease it's rent for an indefinite period of unpaid would be the april rent or the rent for future months as well as you point here are and they rent was due in just less than a week she goes on to say quote importantly however the evidence did not demonstrate that your pad was told that pos have the capacity to pay the full amount of the april round so we do dispute the trustees position that there was some factual finding that mere pad was assured it would get the ranch assured i suppost can take out that in arizona a commercial landlord does have the right to retake possession and they also have the option of using a forcible entry in the tain or action pad  paddle elected to use a forcible entry in the town or action and we showed up in court i don't like pray for fisher and we showed up in court and meir pad had still not paid the ranch had still not tender the r i can tell you exactly what the result would be it would be a judgment in favor of the landlord and rate of restitution would have been issued that's the fact that he omits pure b s he argues that he would have had remedy that the tenant shows wasn't to tender the rent if file bankruptcy it filed bankruptcy the day of the lockout when this allegedly tender was made it was made in the context of settlement a go she ations between mr powell the attorney for the tenet and mr for monica the attorney for the landlord that's when the attempted to cure but now now we're talking about a host petition payment of a pre partition  landlord is now faced with a tenant that is in bankruptcy any such tender number one would have required approval of the bankruptcy court is always subject to the potential of the avoidance of ours and now we have an automatic stay in place with a ten that is in bankruptcy so that's the remedy that attend the elected it wasn't to walk up and hand a check to mere pad it was to file bankruptcy candidly we learned after or during the course of discovery that was a remedy that the tenant was thinking about long before the forfeiture actually occurred they consulted with bankruptcy counsel on april the seventh and there was testimony between the officers pos that they'd been discussing bankruptcy amongst themselves for a couple of months so that's the problem with phil this alleged post lockout tender we dispute that it was a tender in the formal sense of a tender certainly mr powell testified that he said we can come up with the rent and your attorney's fees but they're in bankruptcy that that really changes the rule of the game and the landlord has to look very seriously about how it deals with a bankrupt tenant they've already or is it all just an application of foundation no i don't think it's an application of foundation at all your honor and judge mark tone who who was a former arizona supreme court justice judge mark tone was our district court judge that held that foundation development doesn't apply in the context of nonpayment of ram he agreed with our position and if you look at the statute in a way it's  and then it says or when tenant violates any provision of the lease judge mark tone when he ruled on appeal that the district court level held that this is really a two part statute and foundation development deals with the second part of the statute which is the or any provision of the lease when you have a non payment of rent that's the first part of the arizona legislature says look you haven't paid the rent the landlord has its remedies under  arest thirty three three sixty one and what the trustee is really asking you to do is abrogate the statute that's what he's asking you to do so supreme court did a pretty good job of that already i mean that's the problem here is for your argument seems to me that carefully for example the first time that they referred to it is the statute on page eleven ninety three or four forty two depend on whether you look at the pacific city arizona reports and interestingly actually put quotes to route any provision section of it and they also say in there that nonpayment of rent is a material breach and it's pretty hard to make a finding that a nonpayment of almost twenty nine thousand dollars worth of grant after two written notices in two verbal notices is in anything but a material breach and that's what judge mark tone found when he found that the statute really deals with the second section of the statute and not the nonpayment of  in the lease the thing that asked for five days written notice before there's a default the statute doesn't even give you that our statute says if it's not paid within five days you have your remedy under thirty three three sixty one this particular tenant bargain for its written notice which got now another issue you know i like to talk to you about in the context of what is foundation really and truly mean and and i totally disagree with the trustee and it interpretation and what it's trying to make foundation do and again when you look at the opinion and you look at the language in the way the court has drafted it it constantly throughout the opinion for example says prevents judicial consideration of equitable defenses to forfeiture it goes on to say the proposition that a court cannot provide equitable relief against a statutory forfeiture next page wall will up hold a forfeiture when the is significant we do not believe we should so literally construe he says we do not believe bricker can be that is holding the statute requires the court to enforce a forfeiture based on a trivial breach many other times during the course of the opinion that and find a landlord who doesn't reach its contract acts in accord with its contract who actually accord with it statutory rights and find itself defending a lawsuit for monetary damages this landlord tenant probably could have done a couple of things if it truly thought it was entitle to some relief it could have gone into state court and sought equitable array from a state court to get an injunction to allowed back into the premises that certainly was a remedy but what remedy didn't choose bankruptcy was it chose bankruptcy it certainly could have gone to the bankruptcy court to see if it could have received equitable relief but to not do that and then try to turn into a lawsuit for damages against really against the non breaching party in my humble opinion doesn't make sense and really doesn't flow in the context of what the court was saying in the foundation case it's so different from this case i mean it was a can charge there were a notice of censure of the wrong address there was originally a dispute as to the amount the minute the ten finally got the notice it sent the check the money got there before the forfeiture took place here or you know they told us they didn't have the money to pay their rent they didn't tell us when they were going to pay the rent case when they needed a bunch of employees they went to temporary employment agencies and they got temporary employees and when you see that when the owner is looking at that he sees one after another gee what it what an easy way to get your payroll down hire temporary employees and not pay  some of those were ninety one hundred twenty days out they didn't pay lawyers they didn't pay accounts and one other thing the landlord didn't know was that it had a two hundred some odd thousand dollar debt for property taxes to acoustic which was another one of the tenants on the property so we a nonpayment of rent listen to everything apply the foundation factors she may not have applied in the way mr brown want to be applied he has certain facts that he wants apply and we believe that if you're going to apply imply the facts in total and she found against the ten and every single one of the elements of the foundation factors so we clearly do not believe that foundation does anything other than provide an equitable relief or tenet believe that thirty three three sixty one says what it says and to hold otherwise in this case but in essence be abrogating the statute its one hundred year old statute and landlords do lockouts every single day in the state of arizona and to find nonpayment of rent is somehow not a material breach of lease is inconsistent with the facts in this case and would be inconsistent with the statute here is thirty three three sixty one for a turn over mr for monica and if you have any questions for me anything i haven't covered that the predictability that an orderly commerce requires and that orderly commerce as you know when do we have the right under the statute if they don't pay the entire amount of grant is that is that the point that you look at and  anybody in a credit type relationship would need to know what our rights and then we'll make decisions based on those rights and if the ruling is that as plaintiffs would argue that look if we've been there five years we should get several months where we don't have to worry about the effect of the remedy that the statute allows you know the tenant tells us they don't have the ability to pay the rent but they misled us they apparently did have the ability to pay the rent the record later the landlord later found out through discovery that they had hundreds of thousands of dollars that they had come in and they chose to use it for other purposes now we couldn't discover that at the time we're trying to make the decision and the fact that they come in after the forfeiture occurs and says now we get it now we understand we really need to pay this it's the wrong point in time to have that be relevant because a landlord has to make that decision based on the facts it's nose and should be able to rely upon what the tenant tells us and that's the big distinction between foundation and the fact case in that case that tenet the second knew it sent the ramp here they they knew that they were in default there wasn't and it wasn't inadvertent or mistake and it wasn't trivial because it was the full amount of the rant and yet they chose not to take the money that they personally have the ability to send over to us nothing other creditors i know that would be part of that equation and they only want to have to pay it after the bad event happens to in the forfeiture and if the ruling of the court would be that ok full amount of rent and you can come in after the fact no tenant will ever pay the rent on time that's in a financially difficult situation there always wait for the forfeiture to occur and then come in afterwards because they'd have that right now because they did pay five years in the past that would be a vague standard if the court adopted that and i think that that would hurt commerce landlords would look at tenants that are thin financially and say gosh now i guess you get these extra months that you've paid after so many years they're going to not want to rent to tenants like that as much and i represent a lot of tennis that don't have good financials and they need that space and they put up their half a month security deposit in a very pleased about it and they know that the law in arizona because this is no secret it's been around forever we deal with it every day we realize that you know that remedy can come down to a very quick on a tenant and some of us when we negotiate those leases say gosh i don't want to happen without knowing i hate to be gone on a trip and accounting failed to you know mail the ch they negotiated if they put in we want five days written notice before you can exercise that right so they didn't like the statute they negotiated for more and then later they just didn't like the remedy that was there in arizona and to change that would change that predictability and i i do believe the district court judge her tone was correct and distinguishing the statute you have the failure to pay rent and you have those other remedies and foundation truly fit in the other for a whole myriad of reasons and they have the money all those things they didn't know that is not relevant because the same standard has to apply whether it's f u d or whether it's a lockout because they were given that extraordinary remedy they wouldn't have known all those things if they filed in every direction either the point is the turn of the fourth that i would have had a chance to present all that to a court and an objective analysis as foundation development set forth go through those factors and say ok they didn't pay they didn't provide you a specific enough to surance but guess what they're hearing now it's only been fourteen days they're ready with the check it's only going to cost thirty three thousand dollars or last time and they'll cover that in those kinds of circumstances the tenant would have had that power you know they wouldn't have known all those facts when at the moment they filed the f u d action what they're wanting you to do is set a different standard for a lark and it's ok if they get to do it in  hat that the court found that rather than look the cure is already happened the money's in the court looked at everything from an objective standpoint what were the facts at the time this hearing is taking place the evidence that was presented  for this case and they quote from farmer the the writer of this opinion cannot be but impressed with the idea which seems to come from reading of the record there was not the rent for less or wanted but rather a forfeiture of the lease contract that's what this was about on the twenty fifth of april somebody was in their offices offering to pay them in full no harm they didn't want that money they wanted their property back and that's not a right that the landlord should have the parties are supposed to get the benefit of the bargain and terminating lease but the tenant has a chance to come in and state their case and get relief the problem is the legislature one hundred years ago also gave an additional right to lock them out and the foundation development courts said well the reason the legislature did that and they went through the history they did that because these are property rights that it used to be back in feudal days a landlord couldn't get rid of you all you had was damages this was just giving an additional remedy to the landlord they didn't have before but that was not to say that they could wield that power in some different fashion than their other remedies and that's what this case is about if they could have gotten relief in an f three d that means that the reason that means is that there was not a material