conducts possession discovery and if the defendant then filed a nd motion under bill sixty then there would be a determination about the amount of the judgment that remains do right now we have a judgment we have an amount of the judgment and we have an order that says the civically post with the interest rate at the contract rate that we believe appliance the defendant has said there may be some other amounts that were paid to our predecessor and interests that we did not receive any documents about he says you conduct a discovery i haven't received any of that discovery but the bottom line is this is all and if he may never do anything come doesn't have to do anything he can just sit there and not pay the judgment we don't know what judgment rate apply there and it works very well other ways you could bring this up you could file a motion fifty nine dollars ear motion alter amend the judgment to reflect the interest rate if that's tonight you can bring it up you can file sixty nine motion you know you could be trying to limit the discovery here with a protective order so if we don't take jurisdiction no there are still ways in which you can get the district court to one way or another on this issue and then it comes up to us i'm not sure that's true because they have he has ruled on it he's already made a final decision on  said yes there's pending post at discovery but this particular issue has been fully determined by the district court so we can rule on this issue but that does not work also says that it's unclear at this time the amount paid towards the consent there's an open issue  thousand dollars and we know that interest now according to this order is at a statutory rate that we don't believe should apply that issue is should be determined now because again ringback if the defendant doesn't move again to ask for a determination of what amount is owed and he does not obligated to the court order then we're still sitting here with a judgment that over ten years old that's not been satisfied and willing on the interest rate that we believe is wrong and when when can we bring it then i'm do we need to file another motion to assert that what our accounting says is what it says and there's no discovery meaning if he doesn't conduct the discovery there's an order that he has to conduct the discovery he may conduct the discovery it's all in his hands and this is a judgment that or who hasn't paid judgment so he may ask the court to decide that part of it is then paid he may not have the court do that he could pay us and it would be over but that doesn't change the fact that the interest rate issue hasn't been appealed so here we would have to come back and appeal the intrastate issue again after he says that he's paid everything if he ever stands that well but if you what if you collect and you collect up to the point where he says ok this is all i want to this interest rate at that point there's no question that you could bring that up to waltz when you know the district court you know refuses any further effort to collect why not just keep collecting until that point will be tried but there's nothing more to collect at this point and we were at a point where if the interest rate is th there's i think fifty thousand dollars owed if the interest rate is the contract rate which he specifically expressly agreed would apply after the judgment entered then there's almost a one million dollars so it's a very big difference so having this issue determine now will marginally determine position but you say there's another fifty thousand dollars can collect let's say you start collecting ok and you collect up to that fifty thousand isn't disney your adversary then going to have to file some you know motion to determine satisfaction of the judgment at that point you say he can delay forever but if you keep collecting at some point they're going to have to file something and say this is satisfied and you certainly can take it up at that point to that point the decision by the district court as to what the interest rate is has been to three years ago is there i mean we've already we had a final decision on it and then we have to wait until the judge when it's fully paid before we can get the information which is not part of the decision that before you settlement documents take precedence i don't think there is this final settlement document this case there is the consent taxman that just says the amount that owed under the note and the guarantee didn't the parties have the opportunity to add terms that we read the transcript the judge said and make it simple luck i think making it simple is the smart thing to do frankly i don't think courts want to have a twenty page consent judgment entered i think there were other terms that the defendant complied with you know other things that happened after the judgment that are not consent judgment like they assigned one of the mortgages that was discussed in one of the loan agreements the security agreement that's not in the consent judgment but it happened after the judgment because that's what the contract said all the terms and all prior operative no your honor no i'm not i'm saying that under your scenario decision it says specifically if parties want to go around the merger will then they have to specifically say we intend for this particular term in the contract to apply such it and that's exactly what these parties did they guarantee no both say specifically just these terms the interest rate will apply post judgment the interest rate will apply before and after judgment and it's the civically in their contract and those terms were never amended were never altered there's nothing in the that says we're not going to comply with those provisions it's a freedom of contract issue really the contract says what it says and there's no reason not to enforce that he knew that he signed that agreement he was consenting to a judgement on that agreement and he agreement says if agreement enter that the contract if they paid the judgment there would be no need to consider the bush admin interest rate no need to go to the court and ask for additional time an argument on a per cent interest rate that wouldn't need to be decided if they'd done what they were supposed to do now it's ten years later and they come in and say account accepted but it's pacifically incorporated into it the ruling in the district court and sue the amount that was dispersed to my client and that from the sale proceeds because after multiple requests the receiver continued to fail to do that and that's part of the litigation of failings of explaining what he was doing in the accounting of the sale proceeds so that it doesn't really have any effect on your decision or the district court's decision as to the interest on the judgment but it is out there and that science mentioned we tell you what the two main points so i that i'd like to make and then all explain them in more detail no i parachute into this case actually for my partner joe for fear renzo who has handled it below and a very active trial lawyer and because of his trial schedule he asked me at the end of last week to dive in and i did we're always happy to see mr lindsey thank you very thankful and happy to be here and when i looked at these papers and immersed myself in them the point that jumped at me from the brief of the appellant was the claim that judge sheridan erred by not by looking at what happened with the settlement and the consent judgment rather than gotten back into these four different agreements d and trying to figure out what the interest rate might be there and i say might be present to come back to that and the st point i'm going to make to you is that judge shared into the absolutely right thing to look at the record of the settlement and the consent judgment rather than trying to dive back into those documents and try to ascertain some interest rate from the act and then the nd point i will get to come back the st into more detail in a minute is i will be able to show you i believe that even if you were to conclude which i don't think you should that judge sheridan should look at the underlying documents you still should land in the same place on page twenty five or brief the good case rd circuit the more dough i case rd circuit and more like sides jan around which is in new jersey state case and new jersey lawyers know caught very well that oral settlements are enforceable i've actually had a trial over that issue whether in oral non written settlement agreement was reached so the underlying point of law here is that you can have a settlement agreement even if there's not one word of ok the good case is a good example of that here there was an oral settlement it did not get reduced to writing there was actually a trial in the case and this court  circuit said no it was a settlement agreement even before the trial and that governs so the starting point is that the governing issue here is what was in the settlement and on that will be any point to us in the appendix long and that's where he asked what are the terms and then once you tell me what the terms are then i'll put it into a consent judgment and then you can check that and here's another very important point when you assess that there was a settlement and that he was right in our view to ask what was in that settlement there was actually a record in this case on this appeal of evidence that was put in by the folks on our side of the case who said that there was no discussion about the interest rate and no intent to have anything but the default rate and what judge share which are cheriton said he pointed that out that there was no evidence put in to contravene that and that's a factual finding that is entitled to deference in this court you start with the point which where we think you should and and where we think you should which is is there a clear unambiguous unequivocal showing of an intent to do something but the statutory rate the standard that has been adopted by a bunch of other circuits you come out with on the record of the settlement agreement there is no such satisfaction of that standard should the sparseness of the goods basically settlement point as to other documents that may still be in force like your adversary says well i don't think it should but that's goes is a perfect segue your honor to the point i want to go to next which is even if you look at the underlying documents they come out they come out the same place and here i beginning of this those agreements or all over the place you have one rate in the in the guaranteed a prime plus x you have that rate in the node prime plus x and then you have one of the other two agreements there's an all asset agreement and there's a warehouse agreement and one of them forget which it was says prime cause you're out one of them says not so the documents themselves are not clear unambiguous unequivocal and when you go to the actual language of the guarantee which is the primary language it there that they are focusing on they they lose right there in my view so it's a middle page and there's the block quote and it's very interesting what they highlight and then what they dumped so it starts with any judgment that's highlighted any judgment any judgment at all right not not any judgment any judgment entered against kaiser pursuant to this agreement shall bear interest at that rate that's critical language pursu  to this agreement there was no judgment entered pursuant to a guarantee there that goes back to my st point this was a judgment that was entered pursuant to a settlement agreement that was oral the judge was there presiding over the negotiations if you will and then it was reflected in writing which it didn't have to be under new jersey law this was a judgment entered pursuant to a settlement agreement so even on the face of the guarantee you do not have the application of prime plus x you just don't have it there and you don't get it under the other agreements either because the note doesn't give it to you any more than that does and then you have different rates under the other two agreements prime plus zero and no rate at all so whether you so thank you for that reference to talk to me to a point i wanted to get to which is even if you were to do want to don't think you should do i don't think you should go to the underlying documents when you go to  undergoing document you do not get a satisfaction of clear unambiguous and unequivocal i think those are the points i wanted to make with regard to nine hundred and sixty one let me turn to d jurisdiction and then i'll deny meaningful appellate review to anyone and there was a real chance that can happen no i don't think so and that's you know like i said i i don't buy into this at the very end of last week and spent a lot of time over the weekend and i put i asked myself the same question because if i were in your chair i would be asking that question to bill and i don't think there is a genuine risk of that and i was taken by something that was again it was in my my adversaries brief i think it's good that we cite but they questions some i have for surgery so you start with what this motion was for and it's reflected on the docket also flecked obviously an ongoing notice of motion it was a motion for either full or partial satisfaction and it was a motion if we need to get discovery to figure out how much was paid whether this killer loan was paid whether there was anything else collected that would bring it up to top it off to the full amount and and judge sheridan said that he had authority to grant partial last paragraph of it the st one is the interest rate determination the nd one is the one that says we may serve discovery to determine the status of that outstanding hell alone and any other payments that may have been made  can say that in that i checked on that with a colleague in my office i think we have the discovery i haven't looked at it i don't frankly know what it says i don't know if it shows that anything's been collected or not the that the discovery has been done we have a timetable a schedule a date a cut off anything we keep you from dragging this out you know but i will address but aren't i don't have a timetable it's not in this order let me of good but i think this order has in mind for me tell you what i think on the opposing counsel i came into that i wasn't i wasn't there i assume that the that the copies of the discovery went by it's only an assumption i don't know i don't know i can't answer that question it's not in the record i didn't think to the record and we have the discovery of discovery quest and been ready to go or you know i believe we got the discovery we got i was told it's not in the record i can't point to it in the record i asked why so see it did we get the discovery is it said it said in our brief that we had issue it and then we would die and then the court was digested of jurisdiction by the filing of the notice of appeal so what the breach what our brief says is that we sent it out and while whatever in the time period to file the notice of appeal the the court was know that's something he never heard of and i'm trying to figure out this board final ordered paragraph and the beginning of it is ordered by the defendant's motion to declare the judgment has been satisfied is denied ok and then you have an i don't know what you call it you know what the technical phrase ungrammatically have probably did know was back in the sixty's or seventy's but then you basically had the judge's explanation as to why yes as at this time the court cannot determine the amount remaining do under the consent argument including the interest o judgment ok and then you get the rest of it ok until the remaining discovery issues are resolved so what the real order is i think is if you kind of diagram this thing out that he's saying it's denied and he's giving you his explanation as to what he's doing there is reason basically i can't figure it out right now because i don't have all the numbers and then he says until the remain discovery issues are resolved now that is i think the clear statement by him that he intends to revisit this ok that's the way we took it and i think it's what our my adversary can get and you know because i'm on their own grief they say this was then i think i'm prejudiced that's their language up frankly the words without prejudice don't appear anywhere in the order but one is to is on one particular case that they cited that i think is highly dysfunctional and so i had the same concern you did i asked that question you might have to my but my socio helping me prepare over the weekend i said you know what if a court says to me you know you know does this come back to judge sheridan or not what he pointed me at now to me as a practical matter to be practical under rd circuit law which you tell us to do on questions of finale is that we have every incentive i mean it presses question from our perspective and from there we have every incentive to go back and do what we were going to do when the court was divested of jurisdiction below and that is to get the number of members that's what we went to to begin with and that's frankly how we stop them from potentially over executing because once we have a number from the court below we can show the court in new york that it's fully satisfied or how much is let it go the way things it will keep going it's ok good looking stand you're going it's a very low interest rate great now right it is it's the point that works for your client but what we have an interest whether we pay it or not we have an interest in going getting the total amount figured out so we can know how much we  the judgment i guess but i think judge biggest pointed out and i i haven't checked all those rules coming in today and prepping i have to admit but i did have the same concern you did which is do they have the ability if they feel that we're dragging our feet which i don't think we have an interest in doing but if they feel we're dragging our feet can they go in and just say judge please liquidate the total amount we disagree with you on the interest but please liquidate with d here's the final math ok please liquidate the amount applied at interest rate so that we can take it to the rd the you do not dispute that they could move for a protective order from discovery cut it off at some point and could take an appeal off that i hadn't thought of it as a protect the court well fifty nine motion to alterman the judgment they could do that if the judge said deny them up or the interested in there they could appeal from that i'm thinking on my feet judge i believe you're right i put it in a motion and it will succeed no motion to say ok the judge even is not satisfied and you know we're entitled to more and if that's denied they're not allowed to execute further the courts will peel from that judge i honestly i have not checked those rules to be able to answer your questions or specifically as i would like but i believe that they have remedies to be able to go back to judge sheridan with because this judge sheridan left it hanging to say the hand judge you said you can't figure this out until that discovery is taken they could either whether it's a protective order to say hey discovery you know they didn't come to you judge let's just cut it off if you're dragging your feet if you're trying to drag this out you don't get to play a delaying game forever after my point you understand his i can't i wish i had better answers for you on the specifics of remedies but i believe they have remedies to say judge we can't be hanging out here you said that you can't figure it out until the discovery is taken you gave them a fair chance to come in and take discovery he gave a fair chance to come back and apply for an order they didn't do it they shouldn't be you know profiting if you will from a low interest rate please liquidate the final now so we can take it up on appeal i believe that they could do it i wish i was better prepared to tell you requests covered during that window was it right no no that's not right i believe that what i what we say in our brief is that we did we did do we did issue the discovery that window where the judge yes i just actually say in our brief that we issued that discovery i'm told outside this record by my colleague that we have it but that we didn't get it in time to be able to make the motion before the district court was my passage of jurisdiction so it's where we were headed i don't want to give you up but to put you are you telling us that if we do as you suggested and dismissed for lack of jurisdiction that the discovery will proceed immediately i am telling you that but i might probably telling you what i wish frankly because i do perfectly happy to get a ruling which i think right willing but nine hundred and sixty one applies but i obviously am concerned that this court this court is legitimately concerned that it would be issuing a decision something where may not have jurisdiction so frankly i'm fine with wherever you come out because i think ultimately if we're back here i'm confident that one thousand nine hundred and sixty one is the right rate in fact it's decided now fine with us if you were decide that you don't have jurisdiction and you're concerned about issuing an important decision but i think would be a new one in the rd circuit on what the standard would be for this you first on the jurisdiction issue in theory we could go back and do exactly what we've already done we could say this is the amount that has been paid towards the judgment this is what we believe the interest rate should be this is the amount that still crime plus six percent rate it's the country great this is how much is owed they raise all these ideas about potential payments that could have been paid and they want to discovery and the judge said you know interest rate is absolutely not what you say it is and i'll let you do some discovery and see if there's the more comments that go into this so i'm not going to decide right now what's actually owed there's no reason that that decision wouldn't be exactly the same if we went back into that right now because there is no information we have not received discovery requests that were submitted i haven't seen any either so the interest rate issue has been determined if we go back and he finds something in discovery and it reduces the amount from sixty thousand dollars to forty five thousand dollars we'll still be back here on the same issue that we've now fully argued and briefed and i on this matter with regard to their arguments there are four argument there were four agreements that were quoted in the complaint or four counts one for a loan agreement which specifically says that the amount owed under the loan agreement is evidenced by the note there was an all asset security agreement that sought no money damages to take over the collateral that was securing the loan so the interest rate in that agreement is irrelevant and then there were the no in the guarantee agreement which didn't we didn't seek any money damages on that agreement could go and thank you and with regard to the settlement agreement i don't believe there was a settlement agreement there was a consent judgment that says this is the amount that was o parties are not required as far as i know to enter all of the terms of why they're settling on the record and into a content judgment the judge asked to settle the matter this resolved on the on the claims yes this is the amount they owed there's still a contract that hasn't been amended hasn't been waived the contracts if we says it cannot be altered or amended unless there's a signed in writing by the bank which there is none and there's another provision that says wait a silence is not a waiver the consent argument is silent it doesn't say anything about interest doesn't mean that the parties contract that clearly says it intends that provision to apply after the judgment enters it somehow invalid because it wasn't reaffirmed at the time the judgement entered did you have any other points you want to make