outlined in our briefs and what really is free for this court today is for this court to clarify what the th circuit's opinion is with regard to two different lines of cases within the  central district california one thousand nine hundred and two and in re so qwest which followed v m s which was central district california two thousand and twelve specifically your honor your honors what's before this court at the heart among the other and the code says that when one hundred and twenty days have passed then the unexpired lease shall be deemed rejected and we've consistently said that happens issues st with regard to the debtor debtors council but also and more importantly with regard to the landlord all taking place prior to the time for that that the drop dead date for that assumption of the language of the statutes of my st hurdle before i even ask whether a stop all would apply in some other contacts is whether a stop will applies to three hundred and sixty five before and if there's any issue if you take a look at the southern district of new york's analysis in the ames department store case you have pretty much almost the same facts that were before the court here and it's not a stoppel for conduct after the drop that date it's for conduct that happened before and what you had your honour's you had the landlord in the record demanding payment of a pre partition obligation on the leas we looked at a stop what are you saying are the elements what are the elements of a stoppel here you're saying that we're not saying the landlord is an equitable act you're saying the landlord took some x that would be consistent assuming the lease and that would be the st part ok what's the nd what makes it an equitable is to turn around and say even though we asked you to pay us rent that we would only be entitled to either through a plan or if the lease were being  required under three hundred and sixty five to pay the to make these payments correct and that's exactly right but and they decided not to by force of law so i'm not understanding why is a way because the landlord has a creditor took actions that put that creditor above other creditors and the only way it would have been put above the other creditors in the bankruptcy case is either through having  just that at that point the trustee kind of a charges he found the camp charges to be a preposition claim so but with respect to a stop will certainly disputed as to whether they were because the obligation came due after after that petition i mean that knowingly try to trick you is that correct correct your honor that's what without one of the papers happening following up on that your honor is that while the court asked about the obligation there unexpired lease would keep the lease current on the going forward so they would get free rant i have that was my understanding that they would have to perform all the obligations of the debtor under the lease which i said well include paying rent and the like would wasn't disputed that it was owed it was you did whether or not was paid and they had some account testify no your honor that they actually didn't have an accountant they had a officer of the company testifying and that it was not paid he gave a legal opinion that it wasn't a preposition claim which we objected to the numbers but that doesn't really matter it's what they thought for your stop will argue that correct when you say it doesn't really matter that was one of the basis to question a minute ago that that something would have had to be done to trick your client so can you give me your best shot at that sure your honor took your plan in the record the testimony which was not disputed of the debtor where she testified that she went into the rental office she was told by the person at the rental office you need to pay these camp charges and the pre partition rent you took over the lease in her mind took over the lease is what work is where the trick is she took over the you took over the lease give us the pre partition money that only works if taking over the lease gets you the pre partition money by assumption also with the court can see in the record will note early in the trial the judge balance asked the witness whether or not she needed an interpreter we're dealing with someone whose english is not her st language so relying on the representations made to her when you when the inequitable powers of the landlord versus the tenant and the landlord tells you you took over the lease you owe me the money give me the preposition money she gives him the pre partition money the landlord event can't turn around and this is the inevitable conduct and say i got the money now you can't have the lease because that puts him above all the other creditors and puts him in a better position than they would have otherwise been good morning my needs to resign and i represent the apple e camel investments the landlord in this matter the appeal concerns judge collins sixteen page order after a full day of trial and multiple briefs and today it seems like a really down to the issue about the waiver and a stop will judge collins decided as a matter of law waiver to stop those do not apply to motions to assume the lease and he also decided factually that there was no waiver and there was no stop counsel did not discuss waiver but the big issue seems to be what happened in that april th conversation concerning cam charges porton that that is a able conversation because april was before the deadline to reject the deadline to reject actually curt in june so this is not a situation like some of the other cases where a landlord pressured a debtor into paying pre partition obligations after the deadline to accepted passed this was back in april and if you look at the there i think that's his best argument what is your response a place where the able conversation well would have been able to look at that she's testify is that she did not understand the charges we're talking about camp charge reconciliations that came out due in march so they were for prior reconciliation was not built until march she says on april th i went to the landlord to ask about it the st lady could not explain it so some old skinny guy came out and explained it and she didn't even have a name i don't even know who it was but her prior partner had been in charge of these premises and every month even pain estimate can charges will the way this lease works which is very common ownership consider is at the end of the year the landlord looks and see if they owe the debtor money or the tenant money or the tenant owes them money so in march they came out with a scam reconciliation and decided that she owed them additional money she didn't come in to pay past you can and she didn't come in to pay past due brint if you look at that transcript she says she's paying the estimated camp the reconciliation that they asked for and the may rent but but what he's just represented and i think it's right in the record that her testimony was that the statement from this individual that she spoke to was that you took over the lease you o that right well she allegation that is the allegation that was making and i don't care if you look at the actual original transcript or the correct a transcript judge calls anyone have the transcript in front of him but he listened to the testimony and he heard the entire testimony and what happened was the original debtor had a partner mislay on how to reprise her member who did run it and when she took it over because she took it over she was the one responsible for petty like i think the question is what's the effect of the landlord in effect telling the tenant you took over the lease which she could she could hear as an acknowledgement that she had assumed the lease i don't even know who she spoke to at this office all i know was i think was an elderly skinny gentleman in his forty's i don't know who it was that she was actually speaking to with regards to the camp charges but she did take over the lease she took over the premises she actually got a restraining order and kicked out  former partner and so it was fact actually accurate that she had taken over the lease at least so far as it went absolutely that it was actually accurate and judge collins to interpret it that way and even the decision in the babson that that was not clearly erroneous because it could be interpreted that way if it could be interpreted either way it would not be clearly erroneous but eric tautened who's not the gentleman she was talking about in her testimony is the one that came up and said he thought that that was a post petition obligation because he had billed it post petition and thought the landlord was a title to receive it it's hard to say he wasn't acting in good faith when the courts can't even decide whether or not cam reconciliations are post petitions or pre partition and that's that in rames case but the landlord testified that he told her she took over and we didn't dispute what she said because we didn't have the elderly gentleman there in court to dispute it but it was accurate she had to actually take physically taken over those premises and had taken over the lease had taken over the business but it had nothing to do with whether or not she had assumed the lease and that's the whole reason for the in retreat decision that we look at a fine line you need to have a motion or even an oral motion in court so the court doesn't have to consider the conduct and try to consider what people that was regarding the lease to delete it's not relevant because it was preposition and the only other thing was that conversation april th and it's only two pages of the excerpt there was anything trying to trick her it was explaining why she received a camera she didn't understand what it was they explained it to or she paid it and that happened in april for the april cam reconciliation and for the may rents there was no demand there was no testimony about a demand for her to pay january rent on that v m s case was a different situation i disagree with the case but it was completely different a reason why it was different it was post rejection after the lease had been rejected the landlord came in and demanded like seven thousand five hundred dollars in pre partition rent and once they got the rents they went ahead is that all the leases rejected we want to go ahead and kick this tenant out that's not what happened here the issue even if you consider the camp charges to be preposition which judge collins did the sick heard free rejection this week heard back in april you ation the landlord was demanding that the debtor pay to pay rent it was actually occurred after the old sixty day rejection deadline and in both situations this court said they were going to decide as a matter of law whether waiver or stop applied but based on the facts which are rather similar to this case the court determined that there was no basis for a waiver and there was no basis for a stoppel and the court even said that the landlord had a good faith belief that the amount that they were receiving was a post petition rent payment they were entitled to all we have here is mr katz testimony and no he's not an expert but he is a landlord he is familiar with the lease and the is familiar with the fact that they invoice this obligation in march of two thousand and seventeen which was petition and he will leave the landlord was entitled to that as a post petition obligation we did hear some unclear testimony from the debtor that the following month that she had paid the january pre partition rent the issue is though there was only one rent check and if you apply it to the january petition that she would have been delinquent in the may and if you look at the excerpt of the record on page four hundred and eleven the landlord went through a summary of the billings and the payments and there was a payment for  the may payment was made and it was a smaller amount but it was not applied to january but it's not a situation where the debtor says she paid well january and this case is very simple if the landlord said wait a nd you're not the tenet we're not accepting rent from you going forward you need to vacate why except the rent payment this was the rest of the re actually it was still the same in a deal but there was two members at this point there was one member and are you asking why the landlord didn't just give her back the rent check right she was still occupying the premises and of the bankruptcy code the plan was entitled receiver and there was how to raise the rent for the premises for the business also there is nothing j part of j and am i correct your honor also your honor so there's nothing in the record at the trial court in fact quite the opposite ms loud testified that she worked at the restaurant the whole time with mr chung there is in the record why there was the split it was nothing really to do with the case they were together magically they weren't together romantically led to the order led to why the chung part left but just to clear up the landlord's testimony that or at least the way it's been characterized that ms chong was never there is just not supported by the testimony at trial and the strong was always there which is why the test which is why we maintain that the statement by the landlord you took over the lease you have to pay the prior charges meant you're assuming elise you've got to get current on pre partition charges also your  pointless just so you could respond if it would it would be helpful to me opposing counsel's response is that when we talk about this kind of a de facto situation and there's room for not just one the language has a nd language but there's room for slippage and misunderstandings and what about that that's why the to be a much more formal invocation what's your response to that the just the same way or out of the code would require that a landlord couldn't obtain pre partition payments ok so they demanded a precondition payment and just to address the points by counsel about the june or may rent as pointed out in the exit in the record and this was in what was requested by judge collins of subsequent briefing after the trial the amount that was asked for and demanded by the landlord was the exact amount of the pre partition rent the rent had escalation clauses after the bankruptcy case had come through time the rent increased so the amount demanded by the landlord it could have been a mistake that it was the current rent they were demanding because they there as representations were disputed the trial court asked about other circuits positions on this that's outline of page twenty five of our opening brief the th circuit has applied it not to three hundred and sixty not to this provision of the code but they have applied it to exist