agreement that is acknowledged as having been received by the plaintiff and pushed to plaintiffs to cynically agreed to be valid should be enforced is that is there an issue of fact as to whether or not she received the second agreement i would say no your honor because there has been no evidence whatsoever to suggest that she did not receive the cult we call it the account agreement disclosure statements about hoover's incorporated it about her own representation to of all there has been no statement whatsoever by the plaintiff this could id by affidavit or declaration or otherwise denying receipt of the account agreement or disclosure statement we do have counsel who has said that but of course  fact that some documents have the header and this one conspicuously does not constitute evidence from which an inference can be drawn that the documents that have the header were sent and the one that doesn't wasn't  year and a half she lost it you might you might well drop other events the question though i mean trying to pull you out a little bit on your assertion that there's no evidence whatsoever because that is evidence that the court did wrong inference from a guess it's not really accurate to say there's no evidence if there was some testimony from misguided i or someone to the effect that this stack of documents is exhaustive this these are all the should have been decided on a section four of it hearing evidentiary hearing under this court's decision and parted with everett was there a problem or was it appropriate for the district were to look at other cases and ind arbitration i would say no your honor for two reasons one each of those five unreported decisions the court looked at the plaintiff in that case in fact made the effort of submitting an affidavit or declaration to the effect that i didn't if five glitches occurred out of all those inferencing with drugs in any given case it was done correctly so to to draw the inference from the five exceptional cases that happens in every case is an unreasonable inference  have a incorporation of a very specific document this license agreement in the days and late but the fact that i mean this report looks at the evidence as i don't believe that you sent her to die so the mere document it still can be incorporated by reference even though it is absent that's what happened in the days in case the license agreement was not present the man said i never saw it and the court except your testimony said nevertheless i portrayed by records and in fact in this court's decision the curlies case there's an extensive discussion on page one sixty three about cases where people signing remains where they agreed to be bound by the by laws of in one case was a private school another case they were talking the bylaws of the housing association no suggestion those bylaws were present at the time the docket decided in fact they were subject to being changed in the future in the court found this court found that kind of incorporation by reference where there like an arbitration clause if if there is no if the person really doesn't have no so it seems that the whole purpose of alpert is to say you don't get  allowed performers to continue for fifteen months thereafter without objecting keep in mind that throughout this time she had the absolute unilateral right to terminate this agreement at a time when she also have the absolute right to rely on the contract which existed at the time she made it not on anything you might laterally change later i mean if we accept the promise that you didn't send us and that you entered into a contract with any change would be needed their contract would have to have been supported independently by new consideration i know that's assuming your honor that the application constituted an offer and the person in that back constituted an acceptance and we believe that's an incorrect application of basic contract law here and this gets back to the usual rule that a company that sends an application to a potential customer is not making an offer that is a solicitation of an offer she would have occasion is exactly that s told that she was accepted she was told you've been vetted in your accepted so at that point it was signed papers right she was told she is accepted into the j g n l h g r debt reduction program that is not the same agreement that she had with global and with rocky mountain and in fact the removeable rocky mountain was specifically contingent on future events you spoke of the account in the future it says the account that will be created for you the one that's issue of receipt was created by a misreading of the pleadings by globe on rocky mountain specifically the complaint which said that she received the application an agreement was referring to the application because the application language is the agreement is the agreement referred to my name all right that's in the record why isn't that all by itself enough to create a material issue a fact that required some kind of a hearing to resolve i would have thought that the globe both global and rocky mountain would have submitted something that said we sent to war they chose not to do that all they chose to do is rely on what they thought was an ambiguity in the pleading i thought they were not just relying on the i'm getting putting i thought they were relying on your client's signing statement acknowledging receipt and if they've got the sign statement from your client and they presented to the district where it's a she said here she got it and she read it what's what's odd about them relying on that and think it's it's good enough at least to be a material issue a fact start all i can say judge is that if i was the attorney and the state of the law  we're talking about whether there is a material issue back that she was signed and are he agreed to arbitrate or not and frankly i think her signature on it paper acknowledg that she got the agreement and that she is signing an agreement to it is sufficient to create an issue of material fact well that's not the position of the defendants talk  just said there was no issue of material fact and they never asked for a hearing to have the judge make any determinations they filed a motion and said there are no issues here of material fact she received that we don't need a hearing below and they didn't never and they never asked for one which they could have because this statute says you can have one side saying she got it and one side saying she justice in fact doesn't the summary judgment standard apply when the question is whether or not there are spin on a meeting of the minds with respect to arbitration you've got competing positions being put to the court it's not as if one side or the other gets the benefit of all inferences in their favor there's a dispute about whether or not there are say a meeting of the minds that's that's classically the circumstance where you have to address issues of fact via a hearing that's what the that's what the statute says the statute section four i don't mind says if the judge that instead of the judge believing that there was an issue of fact he took all of this including the documents themselves and families as fact that it was not there was behavior over a period of time to show her acceptance of the arbitration agreement and when i asked about the specifically about the s he s because when that if you look at that as a modification of the existing agreement there has to be consideration and if the mere fact that she was performing under the original  in consideration for this you know our modification right there his response if i understood it is the original agreement was such that  contrary this this was initiated by her in some fashion if i've understood her mind and and therefore they are but they are free to have added that without without new consideration i'm not sure i fully understand the argument but try to work from there promise if you could if the if you look at the original s p a it doesn't stick nowhere can you interpret that as being an offer because it refers to itself as an application an agreement and it says you sign this is send it in fact we already have an account number set up for you so that when we start withdrawing money from your account it's going to winter that camp has nothing left to do it's not an offer i don't think that you can construe that in any way as a offer it's not like an assured they they say to the insurance cases it's not like an insurance application is a totally different purpose of application there's there was such a risk that's not what you happier she's accepted into the program she signed a retainer agreement all that they're doing is of is being a formal for the money and setting up an account it doesn't say that the account is ineffective until it's actually money is taken out of your account put in it because that's the way they set this up if you go to a banking you open in a camp they won't let you open an account without any money but this is the way this program was set up therefore the exam existed that's all she had to do it was just a matter of saying it's all ok the district court cited other cases in at other decisions to make to make in essence a factual determination in this case well on the issue of receipt and of course we get back to schoo they say she said we got it and she said and get that when the issue receipt this is the exact same document and exact same scenario there's actually no difference in the facts of these other cases this is a nationwide operation therefore i think it's perfectly permissible for him to look at especially since  was testimony that in fact rocky mountain biking global are was work marketing l h d yours particular program nationwide so it's not like this was an isolated incident to say that ok there's only five incidences and cases that's assuming that if there is only five people that this happened to well these were class action cases that were off filed  and in fact the class certification was granted in the case in washington so to say that oh it was only five ers that were made is really is not really stating correctly what the answer it even been filed this was just a motion to dismiss which i sumed under the law you would accept her statement is sure when in the complaint she said she didn't get it that screw but in the complaint itself we claim that she didn't get it and that was just something it was thrown in but the document was never produced so i don't feel i needed an affidavit the inference that you that the reasonable inference standard that she has to be given is that she didn't get it that's why there was no affidavit because it was a motion to dismiss you're not supposed to submit affidavits on a motion to dismiss a puppy sex this was a summary judge of motion and the trial judge said specifically in the reading is a diary which is signed by your client and acknowledges years is right but then if you're saying that the statement in the complaint that she didn't get it is offset by the statement  the document that she didn't get it then i should have been permitted to amend the complaint at that point he should maybe have a hearing so i don't disagree necessarily that maybe there should have been a hearing but the district court judge didn't think let's assume for the purpose of argument that we think on the should be an evidentiary hearing on this you in your brief and an argument you've ordered or you've argued that there are alternative ways we do obviously think that this court should reverse remand with directions to send against arbitration that's of course what i have said miners getting to the question of the standard that should have been applied by the district court here it was appropriate to address or should have that approach should have been addressed under rule fifty six standard and not a quote we sit standard because this was not simply a case of interpretating an arbitration clause against a complaint  this complaint falls within that arbitration clause or not and therefore i'm going to decide based on these documents on a twelve sixteen and whether or not it's in this case arbitration instead what we have are divergent statements and what the facts are we have argument of counsel that says the doctor wasn't there we have the statement of his client that says it was there we have to resolve frankly the issue of back on their side more so than anything else as to whether or not this document was there that had six approach but when there's a fundamental difference in fact about whether or not the arbitration of you was ever even reached say for example some of the claims of the signatures of forgery that can't be decided on a twelve you sixteen it has to be decided by rule fifty six standard and