leave that and then move forward with it at no time where we are given an opportunity to file affirmative defenses after after summary c and so there was nothing we could do since all we were trying to do is present i didn't get past the point of trying to present my affirmative defenses an requires you to give notice of rescission you don't get to hang on to both at some point if you're rescinding you need to pay that and i've seen that done judge nevertheless what they're required to do is to give the notice of rescission and then you step into an area of rescission where you move forward but essentially one  of the security interest is detached from you know notices of right any copies of a certain have actually full advantage and now they're moving away from it i don't know if the way they move their thinking that they're giving themselves a tickle advantage nevertheless george segal strike and we get leave to withdraw for a minute the fences and the answer and we get leave to file our parents we move forward and we file our here when i get back to the office i look at it and i decide that something better that i'm going to do with the affirmative defenses and the answer it's already out and we leave that filed i don't think i would put out a request to admit it that time but on hind i never catch up and i never did answer as to the motion i mean that never get answers from my documents which i don't then he may isn't known just as we said with mr moran's look so i would have been a lot better off and perhaps a lot quicker in what i did if i had gotten that discovery and it's a but just just let me clarify one other thing in the in the brief bank of america said that the reason why they attached the two thousand and nine weeding was because only the affirmative defenses had been stricken and not be what we're talking about is the permission to do with draw out do we have permission to withdraw it yes we do do we have to exercise that permission that's the issue i think is here i don't believe that they say we have to exercise that permission we can go ahead because it's it's perfectly fine affirmative defen these purposes was not something that was final or was not something that was new it was just something that was permissive and therefore that it was a did did you find a case that related affirmative defenses with wrong here it's clear that's not over that's not what we're doing we're not wrong there is there is an argument of well i doesn't make something different and file another affirmative defense perhaps a counterclaim and certainly file a different answer that's what all of that did it in sacha why wouldn't you just wait you know what you want to do and  about what the first order sat about the two thousand and nine affirmative defenses the order at c one forty eight says defendant withdraws all previously filed affirmative defenses so the fact that the answer might have been attached to them as motion for s as an answer without ever saying anything about your firm advances me makes sense because that's the only answer that was left on file and if anything i think the point of that allegation in the motion for summary judgment or bad his counsel was simply that so they the two orders are different but my point in pointing out the first order that talks about the affirmative defenses was to just make dates question as to why did that order say did it say the answer was withdrawn or just the from me and says it was just filed a motion to strike the two thousand and ten affirmative defenses that was the motion and from a court now counsel talked beforehand and had agreed upon his entry into the case that he wanted leave to refile an to withdraw the answer in affirmative defenses which i don't think is accurate under the procedural history because it was on bank of america's motion to strike the from defenses in the end of october that motion was granted we were given twenty eight days to answer otherwise the end of summer let me say the other part which is it fell through the cracks and we didn't do it he just didn't file the answer within the twenty eight days and instead has tried to rely on the picture of the two thousand and nine affirmative defenses as an a also on february twenty second twenty ten on our sixty two counsel admitted to the court that he didn't file an affirmative fences so i think it's clear here that counsel never filed in the affirmative and says all the prior ones where from the also the key spot he relies on for the proposition that you may raise affirmative defenses that summary judgment may be true under some circumstances and i believe those circumstances are where the  object but here thanks america objected at every instance possible when the affirmative defenses were brought up at summary judgment both in the reply brief and the certified and it will argument over and over and over again to the motion to dismiss to all the motions to reconsider every at every opportunity thanks mack objected to any bringing up of affirmative defenses that were not properly fide so under the circumstances that i believe counsel relies on for that proposition does not meet here there's no circumstance where the rules of civil procedure should be let down like go under the circumstances they should the court properly found that the affirmative defenses were effective because they were not properly file court rejected clinton's contention and found that she had not been prejudiced by the reason the summary judge but a raising of the affirmative a formative defense summary judgment but the appellate court determined that it was in the trial court discretion to allow defendant to bring that from a defense here the trial court used its own discretion to determine that because all had withdrawn the firmer defenses and they weren't properly for the court and there's nothing that bezels pointed to to show that the court the affirmative defense of standing was also brought out to the court which was different from the previous affirmative defenses that had been filed that was kind of new in in in counsel's argument both in the motion to dismiss and in some of the response briefs to the bank of america a summary judgment motion and that issue was decided on the merits multiple times both in the context of the court looking at the motions mess where determined the bank of america did have standing to proceed and also and the grieving for summary judgment and thereafter if there was no genuine issue of material fact related to standing the fact that there might be two parties that might qualify under the legal definition of  proving that the plaintive the defendant has the burden of proving that the plaintiff does not have standing here it's not a plaintiff's burden to prove that it does have standing the roast on investments case twenty thirteen west lost six five the whale a test that the court needs to look at but we disagree with the application of it here allowing beason to amend would not hear of the defective pleading in fact twice previously when those affirmative defenses were filed thank mark a filed a motion to strike because they were legally insufficient if the affirmative defenses were allowed to go forward resume large were met you just go back to that cycle again and again and again and then maybe he would withdraw it again when he was against a motion to strike so the  amendment would not a cure of the defective feeding because counsel is a minute that was going to be substantially the same as the last two so i would a submit that it would have been the same defective cleaning as prior and thus wouldn't match the  all of these mechanisms have to land into laying and near delays not enough mean there was a lot more going on the subsidy in fact the bank of america wouldn't have been able to challenge these affirmative defenses this president president prejudicial to bank of america and also the proposed amendment was not timely multiple chances to get this on file and they were on file and then voluntarily withdrawn so the failure to do what the court ordered him to do affidavit which supported their motion for summary judgment of the first the facts may be established by admissible evidence this comes a long way from fitting in with any requirement were not withdrawn i believe the record shows that while commission was given we did not do that we established by affidavit that bank of america was not the owner certainly sufficient plus as i as i read to you earlier just a schmidt the admission by the attorney for bank of america that bank of america was not  got to be calm and home before you can actually take over an area have property oh yeah i think you i think it does matter but others just like they said when you when you bring one of these you need something for who you are so that everybody knows the circumstance in which you see however much time you get to someone just then you're moving forward then i think you have an obligation to prove that you in fact are the owner of the note and you are the boy if you you like and so you have an obligation they did not go forward and meet that obligation they said they're not my walking around with somebody else's baby and somebody thinking well that makes you the father notice that i have three question