sixty one motion to vacated the fall based on excusable nicolette you know i've seen the brownies plainer test applied or at least the factors looked at in context of a default i'm happy to address some of the other subsidiary factors i think a lot of the there is so very very significant overlap but you know we think it's rare event that in the case the th circuit said look you've got to look at each of these thought that there might be a good reason to vacate this judgment if the bankruptcy court would look at our offers are proffers to cure the issue that caused the original targeting sanction issue to arise that the court of appeal would not be able to look at in deciding whether the entry of the default in default judgment was appropriate so i think a reson appropriate procedural mechanism to try to employ to try to say you know i can't win the case i said here's a proffer of the thirty thousand our remaining sanctions here's an offer that we'd set for the deposition and by the way that now the debtor has sat for a no judgment ever exam my advice it's really a shame so i looked at the situation i why the motion isn't brought right away there's also the ashford case that says we have to work if there's an appeal pending that might be a good reason why a motion under rule sixty wasn't brought in fact that was the facts here there were other good reasons we had to put a significant amount of money together for a chapter seven dollars debtor to pay the thirty thousand dollars sanctions she had to retain counsel she always had she also had an overlapping criminal investigation in washington that she  precluded from access that it is only for ages that i agree with you that prejudice is it simply the fact that they might have to do their case and prejudice is you know is it that they might have to go forward but i'm talking about that you know that the genius out of the  rest i haven't practiced law for eleven years but i certainly didn't want to said the other said let me tell you exactly what i'm going to do when i present my case and i'm going to tell you before you have to do anything so you can spend a couple years thinking about it and developing a new theory i mean i think that's a a for getting the money you very focused on the money piece of the prejudice isn't that in a different kind of prejudice it's going to be impossible to remedy offering to do things i don't think that's an appropriate finding to say somebody is trying to relieve themselves of eleven million dollars debt that the motion to do so is broad bad faith particularly when we separate whether th or the default judgment particularly if they came the default judgment aspect the prove up of the damages there's clearly no culpability or bad faith on my client's part all right we're at three so you want very present evidence the bankruptcy court said i'm not going to believe that evidence even though there was nothing in the record suggesting that she could afford to pay if she cured monetary only wasn't the court free to do a terminating sanction at that point i mean just the court have to with the debtor who acts a financial ability to cure the harm to the what have no recourse i mean here the quote fail and there's a basis for terminating sanctions as an alternative i'm going to give you an opportunity to do something lesser so maybe we're trying to think about is having because i think what you're suggesting is because the debtor can't pay you can't do anything and i don't think that the law if i could address that a minute last minute i'll come up with a really g counsel to start off with is that judgment on that some point grew tired of this case to me is just incredible because all we have to do is look at the tentative ruling that was issued by judge mind on the friday night prior to hearing on the motion to see the time and attention that was paid to preparing an appropriate record because we knew that there was going to be argument then we moved to the actual transcript of the hearing where all of the issues that are being raised today were in fact brought to the attention of the court and there was no point during the course of that proceeding where the appellant was denied the opportunity to present anything judge judge one listen to it all i was their judgment listen to it all it's a part of their it's a part of the records of the say that you've got just got tired of it she's been on the bench way too off to to allow a mistake like that to be the reason why you know it would be a basis for reversal way and were you man the course has already touched on a number of the points that i was going to make and so rather than sort wehling on those i would just ask the court if there are specific trying here which also refers to the brioni points would seem to be to me the prevailing authority and in our brief we went through each of the specifics of those decisions to lay out why it is that the court was correct in analyzing all of the factors that gave rise to the ultimate decision we went everything from i mean the courts and what they are everything from the project is to the ability of the court to manage its docket eccentric everything was there and we've laid it all out i don't think that the court wants me to resize them all but i think that the court went way out of the way to make sure that each and every of the points that are raised in the applicable authority was addressed both in the tentative ruling and then again when they were raised at the time of the hearing they were specifically addressed point after point after point there was nothing that was left  did it but the judge didn't act late she didn't she didn't cough a name is that i sat and anyway your honor i'm sure that we if the argument could be made that the mere fact that you know the pioneer wasn't and stated and cited for the record would be a basis for reverse and remain on but in reality to me if anything else that would be harmless error if you will even if there was an error which i don't think that there was but the fact that all of the criterion were addressed whether it be in pioneer whether it be in the file case regardless and even in they're all there the same and and the reality is that the cases criterion were all addressed at each point throughout the proceedings that never changed  recently spent a good bit of time talking about the issue of prejudice and then he makes the point that in effect there was no prejudice here because they would have paid the thirty thousand dollars and  she would have sat for her deposition or we could just react to litigation point to respond on well five times prior to that where she was supposed to sit for deposition with court orders to appear for deposition and warnings of impending sanctions which would include terminating sanctions she failed to appear for her deposition abuse of the th amendment privilege assertion because it was the court was very clear in finding later on that the that the comments that were made in the in the motion and i'm going to get back to that in one moment had no bearing whatsoever on the th amendment issue that existed in two thousand and fifteen when the court found that it did not exist that in and of itself there was no basis to demonstrate that in fact she would sit for deposition what i found really strange was that if i were going to be telling the court that i had money to pay the sanctions and it was in my drawer now i'm going to attach a copy of that check so that it is evidence before the court the problem with the motion one it has nothing to do it doesn't have any admissible evidence and my evidentiary objections on these points were sustained to demonstrate that in fact the funds were available and the evidence or objections are not the subject of appeal so there was no evidence that the money was in fact there there was no evidence that in fact the money could be made available there was no evidence that in fact that this helper even had the ability to raise the funds or that those funds were available there could have been a declaration from the rd party that was supplying the funds if this was a chapter thirteen case and my debtor was going to be relying upon funds of rd parties and i'm going to have to submit decorations by those individual roles in order to demonstrate the funds are there none of that happened the original motion was really based on two of the factors when it got there is thirty thousand dollars it's available to pay and secondly there is now this cooperation agreement which again was not part of the record and therefore it's hearsay and nothing else and the court went through all of these points where is the evidence and even after the tentative ruling was that it just wasn't enough there was still no evidence and to make and for the court to to think that well we're going to reverse and remain on grounds that there was a meritorious defense the court doesn't have to just look at comments that are made by counsel as opposed to the declarant which should have been in the motion the motion was filed three weeks before that how hard would it have been to submit an appropriate declaration demonstrating the existence of  defense and more importantly let's go back to when the default judgment was entered let's go back to the fact that where was the motion for reconsideration where was the early motion to set aside the default even though there was an appeal pending which arguably divest this court of jurisdiction i understand but the rules provide for the ability to stay the proceedings before the appellate court go back to the lower court and have these issues resolved how will that happen would we be standing here today i don't know but the fact of the matter remains that what has happened is let's just keep on going down the road what's make the a pallies continue to spend and spend and spend the courts already address the issue of us having laid out our case and completely but let's spend and spend and spend and now when it's all over and the things that could have been done were not done and let's punish the appellee that just seems if we talk about you know this being a court of equity that's an equitable it's also a court of law we know that so i just don't see how the underlying motion the reply and then the server reply filed after the tentative ruling is issued which and a roadmap to what judge mind is thinking so that a declaration can be submitted that can contest everything that's just wrong and which is why i think it was disregarded the question i pose and i think this is one of the more interesting wrinkle questions here is i'm i'm sitting in my trial role i have some in front of me who i have found will not appear for deposition terminated sanctions i determine are appropriate but i have to consider lesser sanctions to the extent they can't pay the cost of my precluded from bringing a terminated sanction i don't believe so because you haue of the right to regulate your docket you can control your courtroom and the plaintiffs in the case the appellee has the right to be able to find a complete conclusion to the case so if somebody can't make the payment well ok fine the default was entered on a specific date the default judgment wasn't entered until quite sometime later so if there were a change in circumstances or an additional time needed another couple weeks or some some some basis for coming into court saying look i paid the st ten thousand dollars i don't have the other one hundred extension zero but i can do it over this period of time and i'm still going to be able to sit for deposition well ok do something don't come back a year and a half later and say without substantiating evidence without admissible evidence that the funds are there and now i'm going to suddenly sit for deposition when there's no guarantee that in fact that's going to happen there's no guarantee that that th amendment isn't going to be raised again no one seen any cooperation agreement you have to be able to control your courtroom and your docket for the benefit of everybody that comes in before you and appears and looks for finality in their proceeding if there are any other questions thank you thank you yes your honor under the american check case the th circuit so we have to look at whether the party who is violating the court order has a devious mind the factual record shows she she's acted improperly in discovery and that it would justify a terminating sanction she tells me she can't i have to consider lesser sanctions i consider a compensatory award to make the other party whole and to some extent a coercive award to make sure she actually shows up and she tells me i can't pay a one thousand on correct what happens your honor i think that we have to look at the circumstances and you know i haven't seen any bankruptcy opinions issuing terminating sanctions in this setting i'm happy to do a little research on that i know that's an issue that's that's important to you but i would say that at some point the bankruptcy does have a court has to give up an issue some kind of serious award but i think the difference is there's a difference between the trimming sanctions and the default judgment which we were just asked that this court analyze separately so i understand your point look what if what can we do about the turning sanction order there might not be way to cure that you might be too late but that's different from saying whether i have a ground my