short time to the motion for summary judgment appeal although i'm happy to answer the court's questions with regard to the other one if they come up are they really of subsumed to the same arguments though i thought this through the same arguments but i think one relates with the other certainly yeah i mean the court there recently found the connection with a summary judgment motion that the english doctrine of prevention precluded the lenders from accelerating the loan arresting the vessel and then still claiming  arcane right i'm sorry that's not an arcane doctrine i mean another warrants in american law would have the same rule when it if you if you do something that makes it impossible to text and perform then  thing japan this doctor in japan did on the the fact that you did that having prevented the performance and that's and it was assumed to be the case in this case and where's the record in our case question of fact now but they also stipulated that because of that they weren't able to perform and that's the part also stipulated that because of that you weren't able to perform that's the piece that seems to be missing in the record here ok as a r excess of the value of the loan the yeah on the sailed the due date that the closing date expired before they arrest the ship then there was the whole thing is whether there wasn't fact this extension and his declaration is totally incompetent on that point you don't believe it evidence and you can't say the borrowers represented to the lenders that the thing had been extended and that that's your only evidence and that's how i read the record that's not he doesn't even provide any basis for why he knows that but all he said is a and i think we're entitled to to every reasonable inferences from the facts that he does raise to suggest that he had to specifically say what he says he's communicating with with the venues and he's telling them these things i think a reasonable inference from those facts is that they in fact occurred maybe maybe not i mean obviously he could be telling the truth that yes in fact there was a representation made but the underlying fact was not in fact true i think we tend to to be the case i suggest that we're entitled to have his those statements be believed and you're saying that he only said that he was a repertory have a point is that you can believe that he's held this to the lender and have no opinion at all about whether it actually happened but let's let's ignore that for a minute and go to paragraph eighty nine where he sa acceleration noted notice prompted the arrest of the mega corps filomena on december th prior to the schedule maturity and cancelled the sale of the  lenders that had occurred and i'm just saying that is not competent evidence it might not even be competent evidence because you don't actually have the document but soon it was an oral agreement he at least has to say doesn't he that the borrowers the let me also add that in the record in this record he did say that the vessel was going to be delivered and the sale consummated when the vessel arrived here in los angeles the vessel arrived here she was unloaded and is part of the record and she was arrested while she was unloading though he doesn't say when the sales careful he said it resulted in the cancellation i don't see one reference to the record in your opening brief that would have told me what you're trying to say now oh see any e the point as i remember for the fact that the guy's declaration just said that there was a representation made to the letters and that that's all you seem to come for to with now you pointed to paragraph eighty nine i got to tell you to me that statement is a little bit ambiguous even and on its own if you put all their eggs in the election in the acceleration basket they lose the right to then say oh and by the way you still have to pay in fact evidence in this just look up his declaration is that they didn't send any more i notices for the you argue on the one hand just as a matter of law that if you have one of celebration you can have a nd acceleration is that not your argument not now when you argue secondly in any event in this circumstance because of what british law that itself is not a valid theory nothing as i understand it in this new case takes that on its own right not in the none of the none of the cases say that you did so you can a was due there wasn't a nd exhilaration all there was was a end of term balloon payment which they decided they didn't want to opt for they are opted for an acceleration and invested this it be a very different case and i think we ought to see that h an inappropriate leverage play once you rest a ship on the solution you can't be heard to say only pace anyway i think the district court was willing to credit you with that and said if you could show that the arrest of the ship in fact interfered with your ability to actually make that last balloon payment in late december you'd be good to go and she looked at her here can't remember who the district judge was you know it was a magistrate has she looked at your evidence and said you haven't established that and i as i said i looked at the two things it's there's sufficient facts in the record if you gives them sufficient deference which i think we're supposed to do is post a court that every reasonable inference and they're supposed to be believed that's what the case law says they didn't  the that testimony they didn't say i think well i didn't say didn't happen but they did say it's not sufficient that they they felt they could where they question without any evidence whether or not it would have happened but i don't understand the it's celebration and you're asked which again we have in the term withers right for not deprives us of the ability to sell yes but deprives us of the time to do something with our security they took our security that said with your security in both hands tied behind your back oh by the way means of payment which mr the complex makes clear it was understood from inception that the only means of payment of the phone was going to come from refinancing or selling the vessel that he made it clear that lenders understood that and that was part of the deal again they never refuted that so when you deprive us of that time unaddressed here this morning where more speculation was thrown into the mix about arguments that weren't made law that wasn't cited and record evidence that doesn't exist in this case the magistra judge entered five comprehensive orders that tracked the in ram procedures under the statutory scheme to the letter procedures which by the way provide for the fact  can be arrested and sold if that's necessary to protect the security and the value of the security that's what happened now we heard an argument here this morning that somehow the arrest was ineffective because of the acceleration notice was faulty you will search the briefing in vain here for any argument establishing that the red rest order was wrongful probable cause for the arrest which was a different legal standard than proving ultimately that the acceleration was wrongful and this is why it's important that this is omitted from the briefing because  in that hearing the judge was fully aware about the alleged ineffective acceleration she was aware about the shortfall she said but i thought under any circumstances there's a security cover short full here that could give rise to the notice of acceleration that was sent and therefore i think there's an odd provision in the agreement that you could do that that this sort of harmless error thing didn't apply no in fact your honor that's jumping ahead but that's a separate point and a very important there is no provision in this agreement that present prevent did the sending of a defective notice of arrest it wasn't a breach of contract it's not defective under english law and in fact the contract itself expressly provides that multiple notices of default can be sent whether the interest that no nd one was sent on that right another is as i understand it and any calculation they were on just hard percentage yes but there was a nd one said yes but it wasn't it wasn't necessary for any stage of this proceeding or the issues before this court for that to happen for the arrest to take place all that was needed for probable cause probable cause in a record to support probable cause the judge's order has both it has probable cause under the correct legal standard and it has factual findings to support probable cause for the arrest but that lets me i'm just trying to understand your legal position let's say that it turned out that they were under water at all if there was absolutely no basis in fact you know we'd sort of determine years later there was no basis in fact to even issue any kind of an acceleration a notice of acceleration they should have had until the end of december to pay you the rest of the ship before that and the rest of the ship actually prevented them from satisfying their obligations i assume you would admit in that case that you all would would have problems i assume that the argument could at least get out of the starting gate but actually the way that the contract here in the way that english law provides that wouldn't necessarily be conclusive that we would lose on the merits english law is very clear that a defective notice of acceleration to start with is ineffectual for purposes of other breaches of the contract by the time of the sale there were multiple breaches of contract alleged beyond the ones that were in the arrest and the court allowed for that including the maturity so you're right i wouldn't say that was fine and if i said that i retracted my point is that there is no briefing in this case that indicates that the arrest was wrongful in fact it's just argument invented here on appeal it but ok but i understand your argument about probable cause to issue the arrest warrant for the ship that it doesn't have to be you know with absolute certainty fine but i'm just saying that if the district court were to have determined here after the fact that you never had any basis whatsoever for issuing the notice of acceleration and that form the entire basis on which i use you warrant and so that i think the court would say their arrest shouldn't have happened you should not have been because the court knew all of that at the time of the arrest and found that there was probable cause for the arrest and the findings that the court made on the security cover breach being present probable cause for the arrest something that's not challenged in the briefing or arguments on appeal then we get to the sale we get a valid sale and now we're after all of that trying to determine whether this excel aeration notice should right maybe that was too glib english law as applied in this proceeding and presented was certainly before the court it certainly became the linchpin of the decision on summary judgment as it should have under the so let me try to commit the two ways st it was assumed britain and we have a factual record here and then when we move to the factual record what we find out here is the record contradicts the arguments that are being made or have been assumed in britain it doesn't if they could it just doesn't establish oh no it's contradicted the judge walked through in this case all of these issues about the arrest preventing the sale or the agreements being in place or and had doctrines in front of it that supposedly invalidated the sale and the judge made findings on all of that and rejected  those assumptions can't take hold on the record in this case in the legal result under english law in this case we know now back to my glib comment what should happen in britain on that record under english law and a principle that has never been urged in this case should be up to the english courts we don't dispute that but that decision can't parachute back into a fully litigated case here properly decided under english law that moves to resolution and conclusion so i mean they are i mean maybe it wasn't called a preventative doctrine or light ever but they did say the problem  the memorandum of understanding issue did not prevent the sale there was no the argument couldn't take root because they didn't prove it and there was no evidence to substantiate it didn't prove up their whole line of argument period with a document with anything that was what about the provisions of the declaration that it's own has a lot of turning to that the provisions of the declaration don't solve the problem they are not addressed to the issue that they need proof on in order to establish winding back to the arrest that it interfered if we can even go to that issue or that the single somehow was foreclosed in fact it was exactly the opposite the sale was supposedly in place paragraph eighty three dollars it was extended you should credit that no evidence so the judge said it's not there it isn't there so the none of these paragraphs add up  paragraph eighty nine dollars right right so that was not a statement st that the buyers withdrew the sale agreement it was about the arrest and its connection to the sale agreement ok so that's not apples to apples in their argument the most generous reading of that one statement that was quoted is that the arrest of the ship cancelled the pending sale no or what's your interpretation oh my my interpretation of that is that that dot was nec never connected to any agreement that would have established that the sale could have taken place they don't they don't get the other half of it that they need even generously credited nd look let's step back again and see if any of that has any legal effect in this proceeding let me come back to prevent it again there were difficult relations about english law in this case furnished by both sides the doctrine of prevention is not mentioned anywhere in any of them and the argument that was made in the district court by the ship holder was that the excel aeration clause prevented reliance on the maturity breach it was an exclusive election will again we know is a matter of law that's not true yeah let's put that aside big so so then the question is do we have evidence in the record to sustain a theory that was only a theory that if it was relevant should have come out at the time of probable cause for arrest it wasn't proven up then should have come up at the sale it wasn't proven up then and then was substantiated by hearsay evidence and incomplete ambiguous evidence at best and summary judgment at a time when the main argument that was being made had no legal effect i don't know of a principle that governs this court's review that allows this to take root extemporaneously at the podium on an appeal the record doesn't substantiate that and the orders refuted by their language the judge addressed these issues at a rest at the interlocutory sale at the reconsideration of the motion on the sale it confirmed the sale which was not objected to by a hurricane and finally it reinforced those issues on summary judgment it that closes the deal and paragraph eighty nine is at best ambiguous and not addressing the issues that they need to address to get by with the judge held on summary judgment as it relates to the contract the maturity breach the it's going to be awful hard to sell it watch it refinance it does that need to be proven up as a factual matter as it's questionable i mean is it sort of self apparent two things yes it does need to be proven up and it's not apparent because boats get arrested all the time the sailors they get sold to rd parties all the time after they're arrested i don't know they do with that that's the interim statutory scheme to protect the value of the security so that's that's conclusively resolved by the sale and then what you mean you having a judicial sale but right there are claiming that it precluded a nontraditional sale at that point there is no weeks in there between the arrest and the period when they should have paid the entire loan off and had would it wasn't substantiated and it didn't overcome the factual record that supported the arrest and the sale which we haven't heard any dispute about here this morning nd it doesn't make the maturity breach go away your honor that was an independent default that we had the right to send the notice on under the contract that was allowed by english law and the fact is they didn't make the final payment under the loan under that independent default that they had to do so no harm no foul i don't know what we call it but we end up at the same place on on a line of reasoning and a default that they have never have thank you very much ron there's just two things really quick st to not get confused about english law the loan agreement requires the application of english law the mortgage agreement  the issues of the motion to vacate the sale of the vessel such as just apples and oranges just not relevant to what we're talking about today which is whether or not they had a right to a rash at the arrest of those are different standards we're talking about a summary judgment standard we think we've we've raised a question of fact if you believe the testimony that you're given i'll be at slim but if you believe that testimony if you give all reasonable inferences from the lengthy declaration on this of the capas including by the way that they were engaged in standstill in the show she ations right the premise of which was the time was necessary to sell that us so there's a state of mind there as well and i think we've met that standard by not much but i think we've met that standard