my name is david fitzgerald appearing for the appellant richard jefferson court should reverse in remand in this case the district court erred in granting summary judgment in favor of alliance the district court abused its discretion in declining to modify the scheduling order and in denying jefferson leave to amend the district court erred in dismissing jefferson's counterclaims adjusting the summary judgment issue alliance obtained summary judgment on grounds that it should have been a judicially a stopped from asserting well you are the judge who is in the best position to the basis for the judicial a stop all argument the record the opinion in order that was generated as a result of the motion in the ruling on that reflects a degree of reliance on what the arguments of alliance bank were so the record itself reflects that the district court agreed that there was one continuous line of credit and that one line of credit theory it reflects that alliance loaned money to jefferson it reflects other matters that were put forth in the complaint and in the and in the response to the twelve enough motion so my response to that is that the judge's own opinion casts some some degree of well if there were if there ambiguity though the judge cleared it up in rejecting your judicial stop argument by saying count i'm not saying he was directing it to you personally bu know that even if the bank can not take in that position or you know i'm getting that construction messed up but the judge himself basically said it wouldn't have made any difference to  me what position they took on that issue because the outcome would have been the same your honor and it goes back to the complaint the complaint suggests that there was one line of credit that she initiated in a roughly two thousand and four and it was amended ten or twelve times until two thousand and fourteen the complaint alleges breach of contract case simple direct straightforward doesn't refer to the third party defendant cri so the argument if we move to clean up the complaint what is that what contract is alliance suing on what are we're trying to pin it down my client denies that he signed all of these documents let's focus on what contract there is a lie is his response was it's all clear perfectly clear that this is one contract and it's been amended a number of times jefferson signed the documents it's all very simple and straightforward that's not this case it wasn't straightforward in the least so the judge the district court judge at the at that pleading  phase really didn't narrow down the issues or focus on what contract was in play and i guess i would say that the record speaks for itself and i hunt is that how does that prejudice you  would move forward why don't why isn't that sufficient contract upon which the judge can rely ok the forbearance contract is several several reasons your honor  first we argue that forgeries cannot be ratified that's a separate issue that you may have difficulty with go to the next and that day to day laws involved yeah absolutely a state law question it's not true there were at least three lines of credit jefferson knew of the first knew of the first one but didn't know the loan number on the first one and tell me if i'm wrong  thinking this i understood that at the time your client signed the forbearance it's not letter it's section agreement there's consideration exchange unlike at the time he signed the forbearance agreement the bank had provided every single piece of paper relevant to this and he could well have figured out on his own that there were multiple lines of credit your honor i don't think the bank did provide every single piece of paper for instance it didn't provide the payoff statements or the paid note that note stamp paid for the original line of credit after was subsequently amended to provide him with documentation from which he could have figured out that in fact there were these multiple lines of credit as you describe they provided him with  various bank statements many bank statements but they didn't provide them with two of the bank statements can can use answer my question did they provide him with anough documentation from which he could figure out that rather than there being one there in fact were multiple lines of credit  i thought the answer was yes i mean i don't know it's possible that he could have figured it out he had counsel right he had counsel here i guess just on his own so when you say well he didn't know i guess to me that's kind of irrelevant he had the advice of counsel counsel received from the bank as i understand it anough documentation certainly from which that person could have figured out that contrary to the bank's representation about either be just there were in fact multiple lines of credit so i don't see where that gets you anywhere your honor is they didn't provide documents showing for instance the that the nine one six nine loan the last one was clearly a new loan and not a amendment to the prior to lines of credit they are record is full of documents that they provided  after after the pleading phase and even after that deadline to modify the scheduling order they didn't provide this is a this is a a series of transactions th curt over ten years i guess i don't know that any of this matters anyway frankly because the letter itself reflects the fact that your client was telling the bank that all of this was forged i didn't sign any of this and as a matter of fact i therefore don't even think i'm responsible for paying it back but the letter already reflects that that's the position your client was taking right so he did know everything he needed to it seems to me to make an informed decision about whether to accept this agreement your  or i don't i don't think jefferson did that he was not live along alone if that question took that position in the letter that release the bank is reflecting back to him listen we understand that you're claiming that all of this was forced that you never authorized any of these lines of creditors whatever and extensions and the like right and that this money that was taken out in your name you never got somebody else basically engaged in a massive fraud to get it and that and we understand that you're taking the position that therefore you should have to pay back our position is sorry we can't give you you know we're not going to exceed to that but we will give you a little bit more time to pay it back if you are willing to accept the terms of this agreement one of which is that you are going to now accept liability for this money notwithstanding the position you've taken that everything was for straight so what else did he need to know that's when you say that well if he entered this on the basis of a misrepresentation i don't what misrepresentation see that the loan was one continuous loan news not so what that's what i'm saying he is saying one loan multiple loans whatever i never authorized that it was all for that i just standard  and actual knowledge of all material facts with respect to each of the transactions in question v the letter it's suggestive of there being one in question that's not the case there were at least three transaction questions and probably many more all that withdraws the ups and downs jefferson but he knew all that when he signed the agreement or his over he wasn't provided all of the documents your honor and there were bank statements that were missing there where there were paid promissory notes that were that were not provided as there was a ford power there was a power of attorney that it was supposedly relied on in support of all this it turns out it was forged jefferson what that wasn't part of the complaints it was raised later breyer later by alliance and it was a basis upon which have never seen a case of judicial as thoughtful been invoked with respect to representation is made within the same case it's always invoke in another words a lawyer makes a representation case number one in case number two and it's resolved in his favor on the basis that representation to case number two he makes an entirely different representation right but it's i don't know of any case that invokes  govern representations made within the same case before the same judge can you send me a case to that effect wilton what i think able to says is that it's not only applied in the same case but it also can be applied when there are multiple cases so i guess by implication it answers your question i'm not sure if that way i know you guys fought that out in this record in the district court ruled on that and made a prediction as to what the arizona supreme court would decide but it doesn't seem to me that issues before us at all the bank has sued for breach of the forbearance agreement that's a totally separate contract which as i said for which there adequate consideration on both sides so it doesn't matter whether that's what our parents agreement is what they base the ratification on the underlying documents are the lines of credit documents  documents etc those are not negotiable instruments they're not to be ratified right they're not suing for breach of any of those underlying agreements they have a totally separate agreement that i can't conceive of it but don't talk me out of this if i'm wrong i conceive of this as an agreement that basically resolves a piece of and pending litigation before any lawsuits have been filed and they're saying in exchange in exchange for our giving you more time to pay this back you basically agreed for whatever reason to accept liability your i mean i think knowledge that you could have fought us on this right and said i'm not paying you back a dime because i never authorized any of that money to be taken out but in this agreement your client gave up the right to continue to fight that in exchange for getting more time to pay it back and that's a totally separate agreement has nothing to do with ratification a few points on that your honor in the briefing a motion for s judgment and i think in the appeal it's clear that you can't i'll tell me why i'm not looking at this right this is a resolution pre lawsuit of litigation right i mean i recognize nobody had sued each other at that point but both sides are recognizing that you have a suit you could bring against me i have a suit i can bring against you right and the bank says we're not going to sue you today which we could because that money was due from our standpoint two weeks ago or three weeks ago we're not going to sue you today we're going to give you another what was a month to pay this and i think that interest free right we're not going to even have interest recruiter in that period but in exchange you are going to give up your right to fight us on this and that seems to me the mutual exchange of the i think in the underlying briefing there was no release that bank initially in their first draft of this piece of paper asked for some sort of a waiver and release by jefferson his counsel at the time which was pretty litigation work with counsel and they they deleted that that sort of provision so there was no knowing waiver or release in fact the bank took that language out of the forbearance document oh the the the banks sued upon for them quote the loan documents so from two thousand and four through all these various amendments through the end in their definition of loan documents in the complaint they make that clear they're not suing merely on that twelve twenty thirteen letter i thought that's all they were suing for breach of your honor not not according to the complaint did the complaint refers to the loan documents and it lists twenty different exaggerate but let's let's hear from them and then i'll just respond ok thank you pretty much all right thanks let's hear from counsel for the bank maybe you can clear up right from the start which agreement you were suing for breach but thank your hon  the loan agreements and the forbearance agreement the loan agreements and the and the forbearance are in and what alliance alleged when you have the complaint in the excerpts of record was that mr jefferson was provided a five hundred thousand dollars line of credit that started in two thousand and four and that and that he had available to him a line of credit year after year after year after year right through two thousand and thirteen and that's exactly what happened  what i like to do if i could maybe clear up one thing that judge to shima ask about on the stoppel and i remember the question correctly just to seem a asked isn't a stop applied when you take different positions in two different cases or more and each of these stop all cases that were cited involve that exact situation the new hampshire vs main where there were different positions taken over the years that marilyn monroe case and then the hamilton case that is the ninth circuit case it was cited is a case where a chapter seven debtor did not disclose on his sworn bankruptcy schedules a cause of action against insurance company years later that same chapter seven debtor tried to bring a lawsuit against the insurance company  of misrepresentation or any sort of deception to the trial judge the trial judge wasn't to see have been frankly mr jefferson wasn't the sieved about what was being sued on and what he received and what he ultimately  in december of two thousand and thirteen agreed he was responsible to repay and if i could i'd like to just walk through some of the things in the record and i think this goes to your question judge watt for didn't mr jefferson and his lawyers receive everything they needed to do or everything they needed to make a determination of whether this was an obligation that mr jefferson should indeed acknowledge was his and then repay so what did he get mr jefferson got all of the loan documents that surround this transaction going all the way back to two thousand and four and by the way the record you mr jefferson acknowledged that that loan document was certainly allowed by him and his advisors so we got every single loan document and each certainly every single long document including enough documents  for him to know that there were multiple lines of every single loan document including extensions including lot of occasions including brand new loan numbers and if you go into the record you will find that at e december two thousand and thirteen part of their diligence was let's see the loan documents ok they were provided as soon as mr jefferson asked for them they showed that there were three different low numbers and so mr jefferson knew that there were a series of different agreements and whether one superseded the other or whatever it is part of the historical line of credit that was provided to him so he had those numbers he also had  jefferson's request mr jefferson actually the record shows called the bank officer that was responsible for the loan at alliance and said send me all the loan statements for this line of credit that you know have apparently on responsible to repay you for your opponent say that in fact he did not receive that's what he's telling you but what i'm suggesting is that you had said what below had all of that information as to you that twenty four twelve to twenty five fifteen you will see at mr jefferson's request a loan off sort alliance sent to him loan statements dating back well long statements from two thousand and nine to two thousand argument both ways i mean clear clear well what the judge said when somebody or somebody would claim that i'm guilty of a stoppel probably by doing that but but i'll take that risk that the reality is mr jefferson a forbearance agreement ok and it's in the record and i can find the cite for you but it's on the record multiple times and it's very simple it recites all of the various agreements that evidence five hundred thousand dollar loan that was made available to him there's not an allegation in the plane ironically that says you signed everyone it says it's evidence by these things and at the end of the day after we got some more stuff and i'd like with ratifying the underlying forgeries he's just saying i recognize that you could sue me and i would have to fight this in court and maybe i could win maybe i could that's where i'm not going to do that i'm going to give up my right to do that in exchange for you giving me more why i'm wondering why do we have to get into this and i'm surprised that here you want to defend i have to win on this ratification issue why would you just say no i don't because this is a stand alone agreement ok let me ask a big draw for question just a little different way and you can affirm the district court on the ratification principle and what i want to do is just finish with the three three long theory defense that's been used here and make sure everybody is clear what the record says so jefferson got all the loan documents jefferson got all of the bank statements and when you look at the bank statements and that's supplemental excerpt of record twenty four twelve to twenty five fourteen you will see on them that every single one of those statements says lo and he got it because the lawyer for mr jepson asked form so as soon as he asked for him he got it there was there's no evidence of misrepresentation by alliance bank in the record at all and what did he do with  he gave those documents to his lawyers the evidence below shows that mr jefferson had a financial advisor that was looking into things they didn't back to two thousand and twelve it shows that he had a forensic accountant on his team  dating back to of century the same time who was going through loan documents the evidence before judge said work showed that mr jefferson provide or through his business manager mr critz or provided accountant year in and year out with bank statements and all of the things that were necessary to complete destruction france so to come up here and say to you we don't know what we're doing if there is going to police he had the f b i even looking over things so from a diligence perspective he got everything he asked for he didn't ask for anything else when he signed the forbearance or group his lawyers could have said we're signing this agreement but we're signing it with a reservation of rights because we don't know all the facts they didn't say that and they didn't say it because they knew all the facts and they had every single one of those things across the country the judge also went through and serve it a number of other cases and while arizona supreme court has not made a pronouncement on the issue other than a territorial decision  that was cited in the pleadings and i can answer questions about that that's not a per se rule about you cannot put up forgeries it's a it's a statement that says if you don't really have the facts and if mind a statute is a statute it's in law what it is i don't understand what the problem is about this the statute itself technically does not apply to this situation where we're not talking about a negotiate bill instrument like a check for example but but certainly it is some evidence of how the supreme court would rule in a state of arizona in a situation like this and it's interesting california made the point in that race car case in all capitals all capitals the court wrote that a principle may ratify the forgery of this agent ok but lo the judge also cited the scott vs earlier creative finance case it's a montana two thousand  decision that surveyed a whole bunch of other states and concluded that the trend and clearly the majority law is if somebody like mr jefferson with you know a full set of facts or at least everything that he asked for signs a forbearance agreement like the one that he signed here then he has by golly ratified and agreed to pay it ok and that's exactly what he did here  knowledge does that mean divine knowledge does that mean some sort of knowledge beyond a shadow of a doubt know what it means especially according to the restatement is enough knowledge that you instruments and that nothing had changed the law with respect to non negotiable instruments going back to the point your honor made earlier the the ratifications in this case where the ratifications of the underlying loan documents if there was ratification in those loan documents are forged and so the a political law about you can't ratify a forgery does apply because without the underlying loan documents that forbearance agreement there is nothing to it i think it incorporates a by reference of a modest ticket i disagree with you on that because there is something to it even if the even if it turns out that you're right on the legal principle that the underlying loan documents  because they were forged you know that they couldn't have been enforced against your client he gave up that right to fight that battle with the bank and that and he did it in exchange for consideration that's why it's an independent agreement it's not like they're suing just on the underlying we are not going to sue you right this minute which we could we could see you today now we don't know who would win but we could go into court right now and drag you through expensive litigation we are not going to do that for at least another month in exchange for your agree not to fight us on whether you have the money but at the same time they were asserting that they were saying we're going to sue you on this for eight to five on their original one because it's one long continuous loan they make that representation at the same time that they are holding back the document that shows that that note was paid off you can't obtain ratification on those