the entire case came unraveled and you just saying you know directly that was wrong that the district court was correct ruling for the purpose of this question twenty six of them fine and running through paragraph seventy seven which aren't even the usury positive action of the general allegations is a classic scheme to bait and switch and prevent raceway from being able to do anything is that it was switched to a loan that had very onerous terms whether technically serious or not it was a loan that had extremely onerous terms which raceway never would have entered into but for the barrel that they found themselves over and in addition to paragraph fifty three of the complaint we'll ledge and it's right there in the agreement that there was a no shot condition so here you have a sensually a borrower that ha no choice they thought they were entering into a joint also the odd thing about it and i know this doesn't go to live and i recognize this but maybe it would help if you would say why the odd thing is that of course they had all the choice in the world out we're not going there we've lost three hundred thousand dollars we're going to hold you accountable for it in then twenty twenty hindsight is always when all your but you know what that isn't even twenty twenty and i guess it doesn't have difficult to swallow and i think that influenced the district court a good deal you know your honor you may be absolutely right and there may have come a day when a finder of fact that you know what a pox on both your houses and i'm sorry we're just not going to go one about freud roger honor if i go to paragraph twenty two of our complaint in addition to all of the general allegations which are starting at paragraph twenty six and running representations made by the defendant i e let's do a joint venture agreement where we the raceway this is going to be a great deal and you and you and i never were partners and that these were in fact false representations the defendant knew they had no intention of honoring their commitment to participate in a joint venture products project and that they fully intended to convert this at the last second when raceway had no opportunity to get out into their owners lo finding against raceway from the facts that were stated in the complaint rather than as the law requires making the factual finding in favor of raceway what the court did was hit its own overt act as being the la at what they did and the intrinsic from then perhaps they didn't care whether they ended up with the property or ended up with a fifty five percent interest loan they may not to care which way it went they were going to make out like bandits and that was actually their goal was to make out like a bandit whether it be to have the property and sell it it is huge profit or whether to just sit back while the race waits and it's a last penny trying to pay fifty five percent interest we don't know they haven't told us i want to get that was exactly right because it's important that it could reasonably had the capacity that the key word was have to be to protect their own interest in connection with that transaction and all of the allegations in the complaint show a scheme on the part of  capacity away from raceway in this transaction did raceway in the past have that capacity we're not saying they didn't but in this transaction if they have that capacity absolutely not and we allege once transaction so you have to look at all of the facts surrounding this transaction and determine what the borrowers capacity was in this transaction and i in a moment will go on to you and from whose point of view do you look at that but let's just begin with thing that you look at it as the court will eat even from the courts point of view what are the court hang its decision on that raceway have the capacity once that they're basically had been the business of real estate development for several years and had a history of stable relationships with its funding sources now if the court had been following always that that should be construed in the light most favorable to race way meaning that here you the last check you were at the bank and certainly you're on it as i say this is all appropriate trial you bet there's going to be a cross examination of the attorney or of that the gentleman that signed the affidavit saying you could have said i'm walking out of the bank and i'm going to go see my lawyer the problem is the clock was ticking and that deal was going to fall through if they didn't sign it right then and there they had absolutely no choice and whether we would win at trial or not is not the standard for whether we get our dana court we might not prevail but at least we should be given the opportunity to do so good morning my name is george burger may please the court counsel i'm happy to start by answering any question that the court asked well you know this is the twelve b six motion to dismiss if i read the complaint even if the district court got it right on usury the complaint doesn't the fraud allegations the n c r trade practices allegations in granted maybe summary judgment maybe and but but for purposes of the twelve being six don't you have to say what they allege question that usury is not an issue for for this discussion the law is of course and i know this court knows it well that we're not stuck with the allegations of the complaint the attached to it many many things including for example the loan documents sells i understand that but i also understand what the district court based its decision on i understand if i  why fraud for example is not in the case and should not the in the case as a matter of the twelve the six pleading motion is because of the law we have cited through this court and i'm i'm going to count them one two three four five six seven cases and i can recite them in a few of the sites or wants that many cases which hold an oral promise to enter into a deal like this under the admitted led facts of this case does not give rise to a cause of fact you know what i know that law  needless to say i've read almost documents and i see your integration costs and i see your statement that says it but i don't have any context as to if you're on a summary judgment and you've got some contacts there then maybe i get it but i'm having an enormous difficulty with the twelve these things when the complaint on its face goes beyond usury and that's what the district court stand under of the complaint and we'd like to turn three or five or six months back inside and do what we had and sue for what was orally under discussion before all those cases  let's examine the facts as played on that the fraud is at one time there was discussion of a joint venture in fact our stock offered letters  his record i don't go on this theory and is much as i love doing i personally love being a district tag as my tribe now in the district has grappled with this and had a ruling and it had nothing stretch i would i would urge the court to look at the entire record from the district court before the district court ruled on the dismissal motion he ruled on the attorney motion the the motion the statutory motion that attorneys which and by the way the attorneys were not added because they supposedly committed independent now all those words were not cut and pasted into the dismissal motion that the thinking of the court is crystal clear and in the district court said words like when you when you have your old lawyer when the loan documents that were side are very clear when two weeks before the letter of the hand is also clear as to what the loan terms are going to be and how can there be a fraud and and so that yes the district courts rhythm and decision on the twelfth the six motion is very critically on whether or not there was a fraud in the basis for dismissing the fraud rico and related claims but but it it i think it bears looking at the companion decision of the district court regarding the attorney dismissal where the district court explained in some detail what i'm explaining now  there are two matters that i would like to apprise the court of that are by way of update couldn't have been contemplated by us because we don't get a chance to file a sort reply today one is this there is a there there is you know our grief a chart on page eighteen and a footnote on page eighteen with a lot of numbers first i want to apologize to the court the footnote on that page the number on the page does not didn't catch that second the record references to the numbers on this table were not stitched into the table but if the court goes to filed by the other side all the numbers are there and then and there they're exactly there to the penny and they demonstrate that is to usury not only was this loan  not usury is under the law it couldn't be usury is just factually because the amount of the credit did didn't even exhaust the hard cash required to pay prior liens and from the principle current interest is not implicated in the credit that it has a factual matter the second thing i want to bring to the court's attention is a case that came down yesterday i don't have a cite for it because it's not even in the in is very much required in california under the business and professions code even though there is chance language in some cases that suggests there's not a strict and let's suppose that now i have to calculate seven years later i'm representing lone star and i'm saying to the court involved with without money and accountants and property reviewers and spend a couple hundred thousand dollars doing are doing our due diligence and then they'll pull the plug they don't have the right to do that transaction in the range of six to seventy eight million dollars absolutely either one of them has the right to walk away from it and to change the negotiations until the last minute and to stay at the and we've got to close in two weeks it really demonstrates why there's no case here as a matter of fact way thank you  that was discussed by the defendant in this case the seven cases that defendant referred to we couldn't agree with more if in fact we were trying to enforce and contract and that was our cause of action proposal to a joint venture proposals but phone calls from alice to west saying that the development board had met and approved the joint venture and then subsequent phone calls at the eleventh hour thank that they had now been given approval by the development board to change the joint venture into a one thing all of that fault they never intended to enter into a joint venture agreement they didn't get approval from the development board to change the joint venture into a loan and all of that was false and hence fraudulent and if you look at paragraph one ten through one seventeen of our complaint that is the fraud and it has nothing to do with whether or more you cannot sue for what was orally and or discussion before you can do it or not doing it lastly as to the chart i think the purpose of the chart on page eighteen of defendant's brief is to show that somehow they never chat but you're both in the building and i would like to encourage you to meet me contrary and let us know within two or three days whether you would be interested in some assistance from the court mediation office