guarantees in this case completely what they are asking for is for the bank to prove its case that the march of zero seven ronin one million and one half million dollar guarantee should be used to make good on the debt that is at issue here they're asking that the collateral that was in place in march of zero seven be used to offset the debt which wasn't done and the trial wasn't approved by the bank that actually happened so what could happen i think the easiest thing to understand this case is that first of all we're asking for auditor savage deposition i'm not going to go into that and a great deal of detail  but in order to focus more specifically on the issues i think it's easiest to look at what we're asking for as to each count as to the counterclaim itself we're asking for the immediate return of the one million dollars cd the reason for that is that it was collateral for a guarantee that wasn't even sued out in this case collateral for a fact that wasn't even at issue in this case it was applied to notes that work in place when the guarantees  supply to two notes players notes for money left after the initial guarantees were signed it should not have been done that way the separate should have gotten their one million dollars cd back at the time of the restructure as to count for sure which is the terre haute who are no mark has asserted marc savard his asserted that he signed the ronin guaranteed because he thought that note was going to be released all of his obligations under that note we're going to be released it was one of the conditions of his signature on the guarantee in march of zero seven that didn't happen he shouldn't be liable under that no at the time he signed that you said it was one of the conditions yes is that in writing no it was an oral condition and the only written proof of those conditions are two things that are in front of you one of them is that and when i say it wasn't a good condition inside of the guarantee it was conditions that both parties understood which under the law makes it a condition of the guarantee we have then the record executive committee meetings from the bank on february twenty sixth two thousand and seven which outlin basically my recollection is that if the both of the parties are aware of the conditions of the guarantee they're included in the guarantees language in this case both the parties were aware of the conditions of the guarantee how do you know that  you know that because we have the executive committee meeting minutes which outlined the conditions we then have a email from mr wolf to marc savard that repeat the conditions and then we have marc savar trial testimony in which he says these are what i thought were the conditions when i signed the guarantee out in addition to that we also have the issue of collateral estoppel what is it that induced mark to sign these guarantees at the time they were signed the promises of the bank and used mark to sign these guarantees the confirmation he received afterwards in the months that followed as he attempted to get these oral conditions nearly all of the conditions that mark felt were in place in march mr worth asserts there so far as to assert that the actual role agreement that he has drafted with the beyers includes many of the conditions that mark thought were in place mr will offer them assurances that he anticipated perceiving that signed loan document back from the beyers very certain all those things cause mark to not take a whole lot more he just relied on what the bank told that's what happened in this case so going back to count for the terre haute couture note itself at the time that mark agreed to enter into this transaction terra haute that the inventory of cash tariff or hoped for hat would be used to pay off the no i didn't happen it was supposed to happen but it did as to count seven the room guaranteed one and a half million dollars well there was no testimony as to how he original notes from two thousand and seven were piling into the two thousand and eight so there was no testimony tracking that money which is required under the law when you're trying to enforce a guarantee none of that happened in the trial what did happen was the collateral was just generally used not to pay notes that had the the collateral was generally used to pay off ayers notes a while bashing of entities that weren't even related to the original transaction so i guess on the ronen guarantee there needs to be showing and proof that mark actually really loose money on the road and no that was it was for one point nine five million dollars from january of zero eight there hasn't been any proof of th karen specifically defines it that it is and accepts out any future refinances or future reworkings of debt in which there is a separate different guarantor so karen should not be liable under that note at all the trial court had that point to it in the post trial motion but i think that not correctly interpret that language in health care and liable for the sole of the sullivan note as to market self very similar issues to the ter for again that note was supposed to be covered under his new guarantees which mr wexler specifically talks about mr savva gave an additional half a million dollar guarantee an order that he would be to what was going to happen to the terre haute court know the solvent for now and the road that decide all of these guarantees i've already spoken about why i think a hybrid of the standard of review should be in place if you want to talk a little bit about the balances on the notes i don't feel that the court utilized the evidence in front of them to reach a reliable decision a decision that you should agree with as to the balances of the notes themselves there is no proof of what was owed on the notes from that the questioning of mr wolf he said he could look back at the transactions but he could not testify as to the outstanding balance on the wro eight in fact just before the structuring took place mr savva he sent a letter saying i don't want you to restructure i don't want to guarantee anything and a day later they restructured everything less than two months later they foreclose and took all  i have tried in church a and b to make the language of the documents as clear as i can and if we look at this really what we have is two parallel transactions we have a transaction from march of zero seven and a transaction of jet from january of zero eight well done is taken all the language from the notes and shown this court what the note says what the guarantees say and what the collateral so you can see in march of zero seven the state of the guarantees  proneness transactions from march of zero seven through january of zero eight there's no relationship the only way they go about doing this i think what happened if you take a step back what for sure the none of them the all requires the guarantee language to be explicitly interpreted if you do that looking at the march transactions there's no way you can do what the bank did in january of zero eight without m permission the only relationship is you're looking at chart b between any of the collateral or guarantees that is specific between these two transactions or the two or form so of adults which we million dollar cd that the sappers are asking that's the counterclaim subject of the counter the problem is that the salaries weren't a part of this transaction there's no way legally that the bag could have assigned the salary cd which they own without the sad restriction in january of zero eight it was collateralized by a guarantee and sorry it was collateral for a personal guarantee that marks they applied to the bears us notes that they didn't have any security for collateral for they took the entire million dollars and applied it only to the payers notes that some dispute now there's confusion in the trial court because applied the entire cd nine hundred seventy one thousand five hundred fifty two dollars to pay off that entire note and they took the remaining twenty nine thousand dollars and applied it to the other players know absolutely undisputed that one point two million dollars was added from a personal loan to the players in this transaction in the fall and then rolling to these notes and january of zero eight understood the trial court should not have allowed  specific it's tied to a specific no not if you look at the language of the guarantee it says that it's tied to the no that was entered into between the bank and road in automotive in the amount of two and a half million dollars the other rolling guarantee that was collateralized by the c d c specifically says it's tied directly to the loan and note in the amount of one million dollars so you have to look at the exact language there's no ambiguity in the problem the disconnect occurs because the trial for good exactly what you sent it didn't require the bank to show this guarantee which is only typed this pot of money went into this note over here this care to you which is only t this all the trial court did was say that we got guarantees let's just apply and everything and that's incorrect the law says you have to specifically apply the language the unambiguous language of the guarantee you have to construe it in a way that is in the favor of the guarantor if you do all that in this case the salaries did not guarantee the beggar's notes and possibility re second kluge from the face guarantees so well yes i agree with that how about that was the room in the restructured room well if even if you agree with what i said which i think you should the restructured rhona know they still have the burden of showing how the one million but when he got to closing he said no we're not getting paid those off baier or his energies will pay them off and so the entire proceeds of the five million dollar loans will go in the guarantee was limited to one million dollars excuse one point five million dollars this was a guarantee that was the basis for each count seven judgment which was limited to one point five million dollars even though the refinanced note of roland was one point eight million or something like that mr serry also signed another hearing that's a defendant's exhibit the problem was that ford never approved bayer has a franchisee the franchise did not yet change in spite of the recommendation or the assertion by mr sale were  in january of two thousand and eight it became apparent that they had to do something to try to help they are out to get before franchise so the bank did it and they restructured the on that is what one of the basement bases of the judgment on count seven since a guarantee of the road or not of money loan was limited to one point five million that's what the judge in this for one point five million so that's how as to the next part of the judgement in favor of the point if there was a judgement against mark sandri of words six hundred eighty nine thousand sixty eight dollars in principle this is on the terr here well it makes sense from the point of view that now mr sam previews able to take home another million dollars and i don't know why that was done i agree with you but the fact is  ended energies to roll it for five million dollars ok but that there wasn't another loan that would be the sullivan on were drug was it or were ninety three thousand dollars in principle this one is another one of those loans that wasn't paid off at the time  evidence in the in the record for the court to determine what on the amount of the judgment should  judgment based on that note with one million five hundred thousand because of the limitation in the hearing team there were two other replacement notes that come into play and these are notes beck were executed by buyer and the testimony was that they restructured this with the hope of getting ford to agree to that the debt structure of the entity so that they could transfer the franchise and that didn't happen but in an attempt to do that there was a new won't on a replacement loan was part of the restructure took on the buyers in the amount of nine hundred seventy one thousand five debtors obligation the new debtors obligation replaced the original better topic i understand that you're arguing but i'm having heard very much we're upping my gra and it basically refers to the transaction of march two thousand and seven as an off rights to stock transfer and he has mr sam severed on one big deal in which course that was never done and that was the final as purchase price for their ship that is i got to hang my hat on the exhibit that identified that i think it's defendants too because that's what sells i don't know if there's any specific testimony of that trial oh i can try to clear that up i'm i don't think there's any evidence in the record some little hesitant to say got five million dollars it's your reason i'm backing off what i can tell you happened was two and a half million dollars in cash and inventory keeps lumping all this money together from these transactions and what it didn't address and it's reported in address now is the additional one point two million that was added in the fall of zero seven and want to get out walk this room mathematically the original notes from march of zero seven or five million dollars the total of those notes the total up to january of zero eight notes was five hundred i'm sorry five million dollars nine hundred sixty one thousand five hundred dollars fifty two cents so there was nine hundred sixty one thousand more hours in debt in january of zero eight than there wasn't march of zero seven ok the testimony the undisputed testimony was that the march balance i'm sorry that the the morse notes were current as of the end of the year in no way logically the five million dollars balance should have gone down between march and january because payments are being made that didn't happen the balance went up by nine hundred that almost almost a million dollars right trucker has no idea we have no idea the bank let more money lumped everything together so the buyer has the money t all lines in january six days after the transaction a four letter that he just read to you arrived at the ford dealership six days after the refining it's six days for most likely had already made its decision the bank wasn't helping anybody but itself six days later they get a four projection on the tenth of march less than forty five days later after the refinance they foreclosed and gotten four million and change and judgments against mark sanford less than forty five days later that to me says patrick that to me says the bank wasn't helping the buyers there were problems so you have any questions i'm