management company called trading and whether the lease was void or uninformed simple now according to the district court the bankruptcy court found the lease void from the outset because of a statement that whitney who is thomas principle made a trial and whitney conceded that the lease was executed basically because the lender wanted a lease instead of the preexisting management agreement now the district court gets it slightly wrong talking about potential lenders there weren't potential lenders there was a real lender called summit and so the district the bankruptcy court and the district court concluded from that that they really didn't want a lease but make any findings that the lease had been entered into as a would seem to me that if the lender required the lender wanted to lease then the state another way the lease the changing the management agreement to a lease for that self storage facility is a condition of the loan agreement and therefore one would presume that at least thomas when it entered into this lease actually intended the lease because this was what the lender wanted and thomas had entered into a contract with the lender for a loan so the bankruptcy court that the bank has occurred in explaining what underlying principles of california peace agreement was invalid but it's that they never operated under the lease at the  record shows that they were operating under them and that agreement and it's at the lease in the past when you were conflicting is is that in correct yes that's incorrect the management agreement predated the lease the management agreement was for about seven pieces of property four of those pieces of property were occupied by a storage facility self storage facility the other properties were just  miscellaneous properties that the management company was also managing the other two thousand and five lease only covered those four pieces of property occupied by the storage facility and the the i am not a contract attorney suggest that they're not treating it is a lease but really if the lease is if the lender is requiring that they enter into the lease then simply simply because a contract is not performed doesn't make it an enforceable the only contracts that never get to court or contracts that have not been performed in some way or another the question is whether this lease is in forcible or not even if they even if they they weren't perfectly performing it there was another issue that we're just at the trustee properly terminated took over obviously right and there was a period there was a period in the between the filing of the bankruptcy about it over a year when the when the trustee had taken over and after the trustee took over there was a period of time  get to whatever yeah relief turnover right the amount of the turnover yes yes that's got to the amount of the turnover so you know really dispute that trustee had the authority to terminate the leases and if yes actually i did he he followed a provision in the lease i don't we i think i briefed this but the question is whether this terminations provision could be invoked any time during the lease or within the thirty days or exactly remember how that worked it was there was quite a bit of detail in there and i think i did include in my brief i'm not prepared to address that any further i'm sorry  there's any other questions i have nothing more to say requirement for a lease there was no testimony other than from mr whitney at trial on that point no one from the bank testified what is in the record however is the summit bank promissory note which is dated  july twenty seventh two thousand and seven two and a half years after this purported lease agreement was entered into and of note in the note is that the borrower the debtor pacific thomas corporation p t c is how i refer to it that p t c is borrowing over eight million dollars from summit bank in part on the representation that excepting the storage tenants that's a separate issue that as of july sixteenth two thousand and seven borrower does not have tenants so if the if if p t c didn't have a lease i was representing didn't have a lease at that point it's representing it has no tenant allegedly two and a half years to the bankruptcy court or the district court i guess the bankruptcy court didn't make any findings about this issue that would support a determination that was a sham transaction yes it made findings it took only so where are the findings in the bankruptcy court your factual findings that the lease was entered into on a  determination if it's not a sham transaction that especially on transaction you have to find the under california law that there is evidence that the contract was a pretense undertaken for the purpose of deceiving a third party so i was looking for that the bankruptcy court decision and i didn't see this and this was not a that sounds like a fraudulent finding that's california law constitutes a sham transaction there this was there is no language i agree with your has always been we have always said the trustee has always said that we believe that it is a sham transaction but what we argued for in our declaratory relief cause of action is that the lease was no in void talks about that six hundred eighty nine b there's a series of subdivisions where it talks about for example illegality or that it would be unfair or affect some type of injustice and was where their findings of the contract is illegal or unfair affect some kind of injustice not specifically stated by the court with the court finds its live makes a factual inquiry and credibility determinations over whether the lease was effective ok and where it was what under california law would would not so in other words i am aware of a sham transaction i think the district court talked about recision and i didn't see any evidence that the lease agreement had been rescinded so what california legal theory are you relying on for saying that the contract of elderly entered into a lease agreement which was read several times is not valid if it's  not valid because based on the profit based on what happened in the property operations that the contract never existed the court found it was not effective yes there's documents that ok so you're not aware of any legal theory under california law you can't cite a case that has a contract is ineffective i've really i'm trying to find what is the legal rule that's applicable here i mean it's fine to intuitively well they operated under a different contract so let's ignore the lease agreement but i need to find what the california courts have said is the principle to allow us to disregard what  appears to be a valid lee entered into a contract it's it's not enough to look at i don't think we dispute in our briefing it's not enough to look at the four corners of the lease agreement that opposing counsel spends time a significant time saying here's the four corners of the lease and it meets all the elements we don't dispute that but your but by your honour's we asked that that and we asked of the bankruptcy court you have to look at the extrinsic evidence you have to look at that's your argument on appeal that it's a sham transaction argue well yes that is what we argue we argue that that contract is now and void that it wasn't a factor and that you don't you don't get to the  you don't get to the four corners of the lease agreement when it is directly refuted by everything that was going on in this bankruptcy at the time shortly after the trustee was appointed he sent out terminations notices in beginning in february without acknowledging the validity of the lease agreement and again did so six months later based on what this lease amendment said and it's our position that it is not commercially reasonable to have a lease extension that is doesn't allow for anything any trigger to be pulled to terminate the lease intel five years plus six months afterwards that would suggest that the last see could be in default and do whatever it's going you know not turn over not turn over a renter not not do whatever it's supposed to do under the lease agreement and failed and that the trustee was him strong until approximately june of two thousand fifteen before he could of terminated the lease we don't think that's i we think that's a tortured review of the lease amendment we think that had the lease been effective it was you go under the original terms of the lease which was thirty days that trigger was pulled the the the debtor insiders then they objected to that and that's what at this point in time we built action was filed in april of two thousand and thirteen just a few months after the trustee was at the table and so does the six month period let's let's assume that we agree that the leases are can be terminated with or without cause written notice so are we looking at a six month period or a thirty day notice people a thirty day notice period we look at the extension had the six month written out of terminating that twenty ten extension which amended the two thousand and five lease would be the one that was currently in effect and so that would mean that there would be a six  terminations period well it depends on how we interpret where they're after the word thereafter comes in if if does that mean that upon the expiration date under this lease to january two thousand and fifteen only there after are you looking at a six month terminations window or does that there after and this was part of what was argued in the palance briefing were does it mean that the lease agreement it is counsel for six months as of the date excuse me that you have to have a six month terminations period as of the date of the amendment of january two thousand  volume of the record we submit all the notices so in february and again in august to have that six month gap and and so both both were given ok yes we covered covered all the have a few minutes very vital if you want to use it you don't have to i just know i just wanted to point out that the lease had standard determination provisions for cause like period comes into effect only after the ten year term expires yes that was our argument was that the this this the lease was subject to an automatic  and but it could be terminated on giving written notice towards the end of the lease term whether that was six months or thirty days that was how the no to determination would notice work now you could terminate for cause of course for other reasons