doctrine which require some degree of fact finding by the court and it's our position that the judge scott at the bankruptcy court level really kind of dismissed the equable subrogation argument he relied on statute of limitations defen to our reformation klein and his as an afterthought said well look the relation doesn't apply because they didn't include the property in the description what's wrong with that that's the concept subjugation well subrogation doesn't even require there to be a document your honor if one and that the doctrine is if someone pays in other obligation an obligation owed by a borrower they step into the shoes of the obligated there's there's nothing that says  typically in a priority of mine situation where someone will miss a mortgage when they're examining the title of a new mortgage goes in place that thinks it's going to be a prior mortgage and that is typically the situation in which it arises you've got a perfectly good mortgage document you're not you're not new to reform it what you're trying to use reorder pro already in this case the problem you've got is you've got an ambiguous mortgage document contains the address ten fifty five it contains a legal description for ten eighty three so it's like if you don't have a legal option well to talk about what you have but for the other it take it doesn't require there to be a legal description it merely requires that the mortgage sufficiently identify the property that somebody can determine which property it is here in the complaint filed by the debtors in the adversary proceeding they allege that the mortgage is superficially ambiguous because it contains both and from sounds like an argument for  know that portion of it is there certainly is a reformation argument which then gets us the statute of limitations issue but the equitable subrogation there's no denying that we paid off the existing mortgage that uncovered both properties and under the to basically the bankruptcy court to basically dismiss that claim merely by saying we failed to include the legal scription for that property in our mortgage misses the point of what i like rules operation is all about it is an equitable  substitutes us into the prior link holder's shoes so we think that the judge scott's decision on that clearly erroneous judge caldwell in her opinion basically just rubber stamp what judge scott had said used his language we think she was incorrect as well they they both seem to be focused primarily on the reformation kleinman the statute of limitations which on a statute of limitations issue at the starting point twenty three legal description is contained in the mortgage so from the get go we were claiming we had a lien against and fifty five is only when the borrowers raise as a defen in their action that they that we didn't have a mortgage on a piece of property this says he's became aware there was a potential issue with their mortgage and sought reformation of that document they also sought equitable separation in the state court  limitations defense at that time period of trial hypothetical here on let's assume that the evidence is uncontroverted that the bank never because you paid it off that position if we never intend if we voluntarily paid off an obligation with no intent to have a lien equitable subrogation is innocent us we're at we're at that point but clearly the evidence in this case we believe established that we were intended to have a lien against both properties appraisals done to both properties the loan to value ratios based on both properties we paid off a mortgage that encumbered both properties so we think the evidence was none of which really entered into judge scott's decision because you relied principally on the stage of limitations defense but moving back to the statute of limitations defense the defendants filed two separate answers in the state court proceeding neither one some which raised affirmative defenses neither one of which ever made it a stage to imitation since the case law that we've cited does indicate the older case law that there is some discretion in the court amendment but they never sought an amendment in a state court proceeding even to the point where another when holder had obtained a judgement the property was going to be sold the property referred to the master commissioner for sale had been advertised had been appraised at that think so because i think if they had attempted to amend their point in the state court the most recent decision the unpublished opinion that we've included the postal sal's enterprise's case makes clear that the judge doesn't have the ability amendment to file a second we've got six month period in this case in which they didn't do it and that and the court of appeal said they waived its that's what that's what the different defense statute says if you don't raise it you waive it the court doesn't have discretion at that point so the fact that they that the it had proceed to do it least judgment for one we know holder i think is one more reason that the esta circuit court judge would not have allowed that to a man and what they've essentially done by filing the a p is amending without leaving court by raising by raising a statue imitation stance from the get go in that case but we also think that even if the statue impatiens could have been raised it's the ten year statute because it's self evident that we thought we had a mortgage on both pieces of property because we claimed on both pieces of property initial foreclosure proceedings never alleged are not you never now we never allege that that is true that we couldn't because cover but i think it's self evident that we thought we had both and it was only as a result of the defendant alleging it that the became an issue in the case and that our amended complaint because it diff doctrine to protect a lienholder against an intervening lane home for not one case cited by associates was lienholder law underway to say that the doctor in a later filed lien holder to leap over an intervening lien and take a priority position the whole purpose of the doctrine is to produce been unjust enrichment and doctorate it would enable eileen home or at any time to assert there was a previous mortgage therefore we have their rights we like their rights better it would basically take away the ri the courts and opting this doctrine the purpose is the doctrine is to prevent and just enrichment and to allow it in these circumstances is to r party for its own negligence and to allow it to be enrich because of its own negligence as to the statute of limitations we take the position that the five year statute of limitations applause in kentucky it is the burden of the party asserting limit its asserting mistake in a contract for reformation to both plead and a proof that the mistake could not have been discovered within the five year period and that simply is not the case here if there was a mistake which was my clients do not acknowledge it was playing on the face of the mortgage it should have been discovered five seconds after execution let alone not be discovered within five years the reality is that it is clear that anger management county verses are nit which interprets k r s for thirteen point one thirty three the ten year exception statute that associates did not meet their burden the burden was on them to assert it they didn't assert it and they could not possibly prove they could not have discovered the error they the associates asserts that mr and mrs handily way the limitations of finance they did not plead it in the circuit court case however the case was taken to bankruptcy court and it was a in the adversary proceeding it is important to note under kentucky law it is to be freely given to a party to the right to him in his or her pleadings to assert affirmative defenses and under civil rule fifteen point zero one can take your rules which is analogous to fifteen in the federal rules they are before judgement to plead limitation postal enterprises is not the same situation is here in postal enterprises a default judgment had been entered it was set aside and the political will here is our position that associates was not entitle to judgment in any way shape or form and that both the bankruptcy court and the eastern district of kentucky court were correct in their decisions if you have any it please the court but just have a couple comments it's history it's interesting the council used the term negligent which which leads me to believe that there's an understanding here there's clearly a defense but there's none are standing but both of these properties were supposed to be encumbered by this mortgage the unjust enrichment action is this debtors going to end up with a piece of on encumbered property that was themselves so that we don't have litigation and proport per like the period of time when they just bell rusty so you're correct but the body of law has developed in an attempt to to protect the parties one way or another from being unjustly and ridge in this particular instance the hensley's get a piece of property free and clear because they borrowed money from a lender who only included one of two incentive based reasons to make the party that was you know there are a fair that the costs of the next time they're more careful except that kentucky's gone the other way in price in reordering priorities they've said the dr and allows what should have happened to happen and that's all we ask and the bankruptcy court didn't address that issue the court ignored any analysis of equitable subrogation and we think that's what the error is that the court had doing gaijin an analysis of who's prejudiced who's unjustly enriched and it simply didn't do it it just relied on the fact that the description wasn't contained in the asked it if it federal subrogation is going to be dismissed there needs to be a factual analysis and that's what the bankruptcy court failed to do in this case thank you