case number one three two five eight seven monique seeing field versus state farm insurance argument not to exceed fifteen minutes for  who summary who dismissed this matter by way of summary disposition essentially finding and we believe an errant finding that our client stopping short necessarily of saying i don't write fraud but again there is the application of judicial stoppel in a matter in which our position is the doctrine of some issue paku jand should never be applied when i is it is in dispute that fact being in dispute is there was from a factual situation there was a bankruptcy that was filed in december i believe of two thousand and eleven ultimately discharged in april of two thousand and twelve the fire in this particular matter occurred in june of two thousand and twelve from that point and there were some amendments to the bankruptcy proceeding in which our client claimed four thousand dollars worth of items or assets from that point there were those i believe that's part of the in minutes that occurred in february of two thousand and twelve after that my client then filed for a and the basis of the denial was stay firm indicated that there were some fraud or misrepresentation on be had for a client because of the great difference in amount from the bankruptcy and from what she claimed and i q emerges from bankruptcy in april of reasonable explanation is there where there's an increase from four thousand one hundred seventy claim against well her position has always been and i believe the record is substantiates is that her position is these at assets were quired after the bankruptcy these are not items that were committed or own at the time the bankruptcy was filed because if they were i think counsel right you know there's no question about it but the litigious issue here is one what we believe is a case in which missing fuel is being i just relax of a better word indicted on her her character's been indicted to the extent that because of the amount that she's claimed as far as how much revenue she's generated in a year how do you claim these with this amount of assets well she's indicated and she's been able to substantiate some of it with verifiable proof that she's received a lot of gifts she has received some gifts from her daughter and things of that nature which total i believe and i don't have those numbers and family about thirteen thousand maybe anywhere from thirteen to seventeen thousand dollars i don't get it from four thousand one hundred seventy five it doesn't but what it does is it opens up the door to make it a legal issue a fact that should be go to go to the trailer fact and that's our position now rather than that a jury finds that she's being credible or whether or not those issues are it's still a litigious issue so it's something that should go to the trying fact well if she if she had an explanation even if the explanation might seem incredible that would get you what judge gilman just referred to as this gap that would be an issue of credibility but just stated if she has thirteen thousand india and some little income she claims that doesn't come close to filling that gap so how can you say there's a genuine issue of fact if you can't even  on her unsupported testimony get anywhere near a closing that gap yeah well what our position is is that notwithstanding the issue of some response as it relates that she's laid the groundwork and made a statement as it relates to what she believes or what she's offered as her position i did all these matters and now what she's done or what the court i believe is doing is putting her in a position that requires her to respond with questions that would ultimately be required to be determined by a trial fact tell me a little bit about the house also as i understand as i understood it from one part of the record  bankruptcy she said the house was worth twenty seven thousand and fourteen months later she claims for one hundred forty three thousand those the right numbers these are just a to that page which i believe you're referring from our brief well your brief now that's a separate matter on page two of your brief you say she reported its value was four hundred twenty thousand which i can't find substantiated anywhere and i assume is  a complete mistake but i don't know if you look at the fourth paragraph on page two of your brief it refers to schedule a and so she reported it as four hundred twenty thousand but that's not what schedule a says so i don't know where that four hundred twenty thousand comes from and i would acknowledge that that is that it's an error in the brief right there but what as a court indicated answer your question and getting to the question that you asked me the value is these are values that are going by she's not an expert in the area of real estate she's relying upon values that she's received from other individuals during this process now to the extent that the record doesn't reflect that argument or that statement responding to you i mean answering a question that i can only respond to it now or are you claiming are you claiming that there are some record or evidence somewhere that somebody told her the house was worth one hundred forty three thousand when it burn absolutely that in the record and now and i what i believe that that's in the record of the submission not necessarily part of the motion for summary disposition issues but part of the underlying record and part of the discovery process that went on  where where is that where would i find it in the record if i wanted well it was what i asked and that was what i was responding to i don't believe that that's in the record that you have this go on on appeal right now so i'm not going to offer something to you that's not necessarily here you got this situation th and to that extent as i said to bugs in this matter i can offer you a response to that but i can't offer your response necessarily that it's included in your record that you have to for me to answer on appeal ok you'll have your morning your honour's carry brillant on behalf of state farm i don't know if it'll necessarily impacted your honor decision but i do think just a quick discussion about the standard of review might be necessary as  regard to the a stop although i mean isn't it fair to say that the only thing that she should be a stopped is claiming that the house or the property was worth more than she put in th if in fact she won the lottery and she was up the lottery ticket in the picture with the check there wouldn't be any judicial stoppel against this claim with or i believe there still would because based and the  uncontested facts in the trial court is we went through her inventory using her ages of when she said she acquired these things and based on the four thousand she claimed we had that number at one hundred thirteen thousand and some change in terms of k i still think it would because you can still have she was asked several times i guess if there was nothing else that was if that was the only fact we had that she had a bankruptcy she presents a claim and then she won the lottery and could in the show she was able to acquire this amount of personal property i would agree there would be a judicial stoppel issue however in this case we have a little different in that she was asked multiple times first in her examination under oath th and then finally in the in response to the motion for summary judgment she was asked show us how you get from four thousand dollars to one hundred and seventy thousand dollars in she testified she him she received six thousand six hundred fifty nine dollars and six cents worth of gifts she had her two thousand and eleven tax return of eleven thousand six hundred seventy eight dollars unemployment benefits social security benefits and child support all that together and giving her every benefit of every doubt the unreported and the reported she has thirty two thousand nine hundred eighty eight dollars that puts aside the argument she made the bankruptcy court that her income was enough to cover her monthly obligations if there was a negative so she somehow was able to use thirty two thousand nine hundred eighty dollars not paying any mortgage or utilities and use it off personal property which she now wants to say is worth one hundred sixty six thousand dollars something you just want to focus on this about whether she claimed that she had owned this stuff before the bankruptcy date and i tried to look at some of these inventories they're very lengthy but i didn't see any claim to date of acquisition there is there something else were you saying that she admitted or claimed that she owned this personal property before the bankruptcy yes we have her updated inventory and then the e r seventeen is the a previous time or i bought them at some particular time it would be on the updated inventory which if you go see which one i mean i don't have all of it i have exhibit a in exhibit l before  you so there is and again if she was going to challenge the affidavit that we provided or some of the facts that were certain the time to do that was in the trial court you know i mean you may had one hundred that she had four thousand of the things that we valued at one hundred thirteen thousand dollars so i do think there is a judicial stoppel issue for those items going forward now she's claiming that she had that she bought it all after the bankruptcy and then we get a reasonable juror could not find in favor of missing feel on these issues for some of the questions your honor asked about how do you get from four thousand to one hundred seventy thousand in fourteen months when she has failed to put forth any proof to create a question of fact she all she did in response to the motion was say if the court wants an affidavit you know i'll provide one if i promise to do this later which which the courts have always found is not sufficient she needed to come forth with a fact at that time to create a question of fact and just saying i'll do it later or i'll tell the jury what my facts are is insufficient in my view so i think that's where she gets i think that's where the the lack of a question of fact which was found by judge cleveland comes from is that she didn't she didn't challenge any of it she agreed with basically all the state farm facts save a couple and then the one she didn't challenge she was required under judge clear lynn's rules to put forth a color statement of fact if she was if she had any and she failed to do that as well  i don't fw that there have been cases that have found similar to judge clearly and we have the method versus mid century insurance company case from the eastern district of missouri and that case there was that their claim to being court was eight hundred dollars and then six months later she presented a claim to her insurance company for ninety three thousand one hundred sixty six dollars and seventy cents for the personal property and the court found that was a material misrepresentation in violation of the policy which are fraud as a matter of  law the court mentioned there was the large divergence between those two numbers similar to what judge gilman was asking just could not be explained similarly in fidelity versus jamison means two thousand and eight case from the middle district of alabama in that case there was twenty three hundred stoppel to bar claims because it does establish fraud as a matter of law particularly when there is no counter evidence to rebut it with respect to the house where does the hundred forty three thousand number come from i believe she is  using state farm for pair estimate she if my memory serves and again because it wasn't part of the i mean we asked her to limit to the twee asked the court to limit it to the twenty seven if he if judge things go motion so he never really addressed whether he was accepting that not accepting that but i believe she's using state firms repair estimate for that amount his the judge's opinion makes it would probably be there but you don't know what i don't know i'd offer for sure because i don't know if that was ever because again it's again not impossible that the health went from being worth twenty seven to one hundred forty three you know of oil was discovered if we were all that lucky that our houses to appreciate that much we'd all be much happier in our real estate purchases unless of course any questions i nothing position that our client is in in not going at the point in time saying hey i'll give you an affidavit if you need one but nonetheless the the record is sufficient with what we have she makes a claim that these items were acquired after the bankruptcy so to the extent there's some mathematical application of four thousand dollars going towards the hundred thirteen thousand dollars claimed and then an additional amount but we can't sing just because this young lady's income is thirty two thousand dollars that she can't acquire assets she's made a claim that she's acquired through gifts she's made a claim that and to this certain extent with the affidavit that counsel spoke of even in that that affidavit in even in his brief he indicates that missing feels that i own the items more than a year and more than a year still leaves an what i do i now gys with judge clearly has done and as this court recognizes as you know sometimes an expression in a criminal matter you have a probable cause proceeding and i have my own personal experience in this regard and a probable cause proceeding that goes up and it gets bound over to a circuit court in a state court proceeding and they choose not to do the indictment but the probable cause proceeding and you file a motion in saying that's just wrong they're flat out wrong and what happens that judge who doesn't afford the evidentiary hearing to take place or doesn't the fourth the trying to take place and then allowing that testimony to be complete in the record with it up with the permission to cross examine this affidavit who made this claim as to whether or not is a year from the time that the affidavit was filed a year from the time that you know how was it interpreted by missing feel all these issues will go to bolster her position that is it it is it a substantial question of fact furthermore the issue as it relates to the value and sometimes i have a lapses as i get it up here sometimes being before this place sometimes it gets to you but the information burma council has supplied and told the court these are numbers particularly to the value of the home that's not necessarily a miscarriage rhaetian mis characterization or should discolor any claims by the same feel because has been offered through the vestiges of professionals at state farm so it's not to the certain extent it's not an element that should go that issue with respect to the value of the home there's still some substantial basis as to how that got into that into the record so i would ask the court to consider this a question of fact to the extent there may be some limitation based upon income i don't think that that would even be proper because she's indicated that it gives gifts and she's been supplied some receipts as it relates to her daughter having given her some gifts but she still makes that statement and based upon the statement that she makes it's still an issue that should go to t