a thirty thousand dollars loan to woman who was a part time college student taking six credit hours and they gave us thirty thousand dollars loan for one semesters of attendants at the time they didn't require cosigner she was making ten dollars an hour so why make this lol i imagine they made this loan because they're banking on it being held nanda shargel in bankruptcy under one of the provisions that were allowed under five point three eight eight but here's the thing with that this loam was a private loan and it is going to be accepted from discharge is should be accepted from discharge under five point three eight b which says this law has to be a qualified education while this loan definitely is not that and the core of the bankruptcy from that in late eighty's that first interpreted what the word pundit mean now the word funded in that court's opinion was where the the not profit organization did everything but make the loan itself they simply reduced the role of the the nonprofit entity and that makes sense in that case how do you get that interpretation out of the language of this that i understand you're advocating that standard to me there's no basis for it is that you and i don't believe that you have to go there i believe that we can simply rely on  where they end up with funded in that situation in targeting it to mean meaningful meaningful participation over the years banks of course have bastardized that case to the point where they just say hey there's a guarantee involved by this nonprofit entity and therefore that guarantee me the same thing is funded i can get that argument i guess even though by plain meaning congress and how to use word guarantee when i want to use that word has pretty much say that do they not that a guarantee is sufficient to be funded funds to be deposited in this case it would have done most of the courts rejected then yes i agree with you but just because i've been reject doesn't mean that there that position is correct and especially on this case here we haven't had any evidence where like those cases the guarantee was made to the back up in those other cases the course looked at the guarantors role and said hey there's evidence that the program would not have been funded but for the guarantee of the nonprofit that's know how to get there to get funded that's the basis of the argument your honor on summary judgment i don't know how we get to this part where we can say funded is the same as you receive now the bankruptcy court there was an attempt to inject a guarantee issue into the case correct but both parties argued whether or not guaranteed meant the same thing as funding the court chose to ignore that are going to stead went terry if by mail and therefore disciplinary capacity and therefore they have one of the loan program not just trying to get to the make sure that we understand accurately the status of the record with respect to the question of whether or not the program or the loan was or was not guaranteed if i recall correctly your opponent tried to put that in by way of an affidavit to which you object in the trial court did not rule on that motion denied it is moot saying that it wasn't relying upon an issue in making its rulings that were the record stands that it exists in a radical reimagining of five twenty three eight what is striking about both the briefing that he submitted and his presentation today is that if it stays away completely from the language of the loan documents and the evidence that was put before judge run when and when you look at the language of them own documents it becomes abundantly clear that this was an educational loan that was made under a program that was funded in part which is an important phrase in part by a nonprofit and we see in the credit agreement that the borrower knowledge that the loans will be used only for educational purposes we see that she agreed to meet me repay any funds not used for educational expenses that loan tied its repayment to attendance at the school that she designated in her loan application requires proof of enrollment in the school for the period in which the loan was requested acknowledged was a nonprofit the credit agreement also current within the record yes the credit agreement is in the record i understand the credit greenman is but did the bankruptcy judge specifically declined to rule on that question so he did not make a finding he did not make a finding that it was guaranteed by a nonprofit the evidence was in front of him in the record he noted insight into the credit agreement for authorizing the lender to release information to terry relating to the borrower and it and it requires the instructions requires that any application made through the mails or overnight delivery be sent to terry and so you know you're correct that is what your adrenalin pointed to to find that the nonprofit exercised the plenary capacity and was was funding the program in part why i'm just wondering if her hands are tied on his decision to not make the finding regarding whether or not the loan was guaranteed by a nonprofit despite the fact that the loan documents say it was well kids were an appellate court yes we're not really in a position to make that finding if he declined to do so are we as the circuit has reminded us on more than one occasion well in in this instance your honour's i think that the case law will allow you to do so because there are instances where the courts including one in the western district of new story have found that language similar to what's contained in our loan agreement was got the court to the germination that the guarantee was in place which case where i would direct the court t sears let's judge venters from two thousand and eight i would judge direct the court to in regime back to east which is the two thousand eight hundred case from the eastern district of new york bankruptcy court i'm not entirely sure how this case came about in the kentucky court of appeals but ratchford visit versus national collegiate student loan trust two thousand and five three and i can give you the cite if you want that two thousand eighteen westlaw three nine five seven one zero zero can you give me in rash words the national collegiate student loan trust two thousand and five dash three two thousand and eighteen west law three nine five seven one zero zero but those first two cases  the set a judge answers case yes that's in race years three ninety three b r six seventy eight bankruptcy western district two thousand and eight right and the new york case was also a bankruptcy level case five eighty four b r five so those don't really go to the are instances where there are instances where the courts look into the documentation alone to determine that the bankruptcy court was right but this bankruptcy court chose not to do so right but your question was whether or not where are well  your question was whether or not you can get to that to the to that question or it is a motion for summary judgment where on to nova review i i would think that if the bankruptcy court could look to that you're asking us to make a factual finding that the trial court did not make well i mean i'm not asking you to make a factual finding what what what i'm saying is that the the the bankruptcy court i think was correct in finding that that  terry played a meaningful enough role to to find that a guaranteed by house so how does the record support a finding of anything other than there was an address an appeal box to which documents were to be sent parameters of what we what it is but we know that it does exist and then taking in taking in the context of the language of the rest of the credit agreement we see that it is playing a pretty broad roll and it's satisfying requirements that have been found instance where the court found that participation was was sufficient to constitute funding were nonprofit processed and submitted the application to the lender what's what's the standard the answer there is no clear standard and i mean this not looking to change i don't think we're looking to change what is what is found to be a guarantee we think that the the court is correct judge judge joe we agree wholeheartedly with your decision and you can use that that that falls  with what every other court is doing but what i'm advocating for is that the terms of the documents in this instance should be sufficient to establish that and they do guarantee the guarantee yes and and if this is what i'm what i'm hearing is that a trial court specifically didn't go there so let's look at the other evidence and tell me is the inference that the judge made the finding that he made about a plenary role that he had an appropriate determined i mean he's he doesn't have to turn a blind eye to something that in front of him he saw that terri was receiving every document that came in through the regular mail or overnight and the loan being issued but we don't have that here daily we don't but one other one other point that i'd like to make because because i hear that there's concerns about the findings of fact that have been made or not made  discussion about first model his role in organizing these programs it's specifically states that it plays a role in organizing the bank one program which is the one that that is that issue here and admittedly at issue here a yes it would yes i am saying that and and try your next argument i would also i would also point the court to back to and this touches on the educational loan issue that what happened here is miss page and she promised that this would only be used for education loans and she promised that she would repay any funds not used for education and now for the first time in on page seventy saying oh well i didn't take out this law for educational purposes they've now implicated the the issues of five twenty three eight two she's coming before the court and she's saying hey i mean misrepresentations to the lender to obtain this money and that's something that i think this court bear in mind if they're if they're considering that remain for fighting we're going to end up with the same  t little too late very too i mean it's the admission that that she she took out this loan was not made until april of two thousand and eighteen in our opening up every i mean you know we've been operating under the assumption that this was a good student loan that had been made and and we had a counter party who was acting in good faith i mean it wasn't raised until after we were the before judge run which is the decision below regarding what standards should be applied and whether was meant in this case consistent with the admonition that exceptions to discharge are to be construed narrowly  yes it certainly was and i would i would direct this court to enter a series on that point again where judge venter said that his contention that the loan in question was not obtained for it will cation purposes wholly without merit in light of or knowledge ones that are the same as that we use the approach that was most consistent with the language of five twenty three a a one and that is that you look to the terms of the language the judge just looked at the language of the of the credit agreement and then looked at the language of five twenty three a a one and applied it he did it he did not go off on a tangent in in any way his his decision was completely in line with every other decision that we've we've seen in all the precisely the issue that he's citing them for which terry guarantees i have nothing further there have been answer any other questions otherwise i see my time thank you you're honest starting with this last part that the decision of judge runways and why with every other case that's disingenuous statement this case is outside the bounds of those other cases because all of those other cases starting with in real brian equate gears on you here but let's go back to this room of the the loan document is counseled clearly indicated shows that are states that terri a nonprofit guaranteed this obligation and as well is that really an issue i mean it as a pointed out and down below was that there was no evidence put forth where richelle testified so the accuracy of those statements inside the contract just because something is in a contract as a mean that is actually true i can agree that i'm the queen of england it doesn't mean that i'm the queen of england in a contract so there needs to be some evidence put forth to show that there actually was a guarantee there was no evidence put forth the only evidence that there was program chase designed a loan application chase made the loans who are chase directed her to submit the loan documents either by fax or by mail there is no evidence that any doctors were actually received under the loan program by mail bioterror so we don't even know if they have a role whatsoever we just know that it's in that document but there was no other evidence put forth to say what the role actually was and this is the only case in the shred of cases starting with in real bryant that is ever held the standard to be that low statute the statute plainly uses the word guaranteed in the first clause of roman it i then use the word funded in the second clause and so we have that argument about what does funded mean now i understand you have an opinion out there that says guaranteed is enough word to fund i think we have to have that argue here below because there is no press there's no precedence in a circuit for that and you're saying that argument wasn't part of this case so far the argument was made by both a was a dropbox but but the facts aren't here to tell us what terri dead and if in fact terri didn't guarantee that we have no food no evidence whatsoever of that all we have is just a statement of the court chose a cherry picked from the from  affidavit in saying that they received mail that's it all these other cases in real bryant in re spears going down the list in re merchant they all rely on factual all facts that were presented for instance an affidavit from the bank saying we would not have made this low but for terri's guarantee we don't have that here and that was pointed out on brief at the poll and also below as well so i want to make sure i understand what precisely what happened below and no evidence whatsoever they have personal knowledge to make this statement the judge shows a sidestep that as well as it rendered is moot said i'm deciding on this one singular fact and didn't address the fact that every other fact was saying that chase did everything for the long program and that's where we're at and why did the parties argue in their briefs below this question about whether a guarantee alone was sufficient so both parties did address that in a briefs below however the judge again chose to