to provide and trying to figure out where so you don't normally a duty to preserve something arises when somebody says you have an important document and i hold onto it because we're going to fight about it or i have a question about it from whence does their duty to preserve because he never had possession of it he has no way of knowing when they lost it but so i think that that bring this is it their fault that he never had possession of it that's my problem oh yeah i think i think it is i'm mean he signed all the documents as i remember with the title company right and there's no dispute that the agreement was there when the title company didn't give him copies of the agreed he asked for them that day so why is it wells fargo's fault that the title company did because then he went back to mr austin who was the agent who was you know promoted this and worked with him through all the course of and asked for the documents he went to a second place to the what's the title company they said you had to go to a different office which i think was the name you know your notes wells fargo and say well wait a minute this company really messed up i need to have a copy of it's pretty big loan well you know give me i think you made i made a significant well now tell me when he made that significant effort immediately after it was immediately after it was signed and he did it again the next day and the title company title company and then with another office my think it was a wells fargo office they told him to go to the different office i thought the record didn't and maybe it's not important but i thought the record didn't disclose it was fargo has actually asked for this document until construction loans work so what evidence is in the record i can look to right well there's this first first we would argue that the example or example of those tribal issues the fact as to whether that exemplar was consistent with the document he signed i know the the wells fargo the person and the record shows that ok well i think that i think the clearest way to look at it is the representations that were made going to the cross the balance of what i've looked at what he said your client says the document referenced permanent financing the example references permanent financing to and then he says i wouldn't have signed it had i not thought it gave me that's not really testimony that the document has promised  permanent financing so tell me where else in the record well there's not just let me finish tell me where else in the record there's evidence that created a triable issue of fact on this all of this this loan was marketed specifically as  one loan with two closings and he worked very closely with the aca but everybody agrees it's not disputed in this case that there's a loan is designed to let you get permanent financing i ended with the question is whether it's promised and so tell me what evidence in the record is there is that wells fargo promised your client permanent funds mr mr ostrom told mr pick off when the conditional letter came and you are approved for permanent find yours everybody agrees that that th e approval had been made the question is whether or not he was promised that he would receive permanent financing right well he i think that he was just he justifiably relied on the representations that were made by the representatives of the bank saying that thought what was your evidence for damages well there was there was lots of evidence that there was equity in the property over and above the amount that the foreclosure but that's not that's not the damage question the damage question is what would your client have still been foreclosed had he received a look at is taking a bigger picture view of this and that is what was going on during this time period he got the approval for the loan in two thousand and seven spent a lot of money you know i don't know mark and the market crashed and my prob property was worth right would he have been better off well sure i think i mean i there's there's nothing in the record to suggest that he there's nothing in the record at all that's my problem so what we have here is a construction loan made at  time when the market's good the market crashes and your client doesn't get a permanent long when the market crashes no permanent loan would be in the amount of the construction loan obviously right right and much higher than what the properties were so the question is how was your client hurt by not getting the permanent well for one for one thing he was unable to as anybody you know later but right when he was he was unable to sell the property once they put a notice of default on him but if he would you know he would have sold the property subject to a permanent loan when which and the property was worth less than the loan amount at the time when the property was worth more than at the time that they failed to make it at the time that you client should have gotten a permanent yes what's what is that is what that in the record there's there's well there's the what's your argument is at some point in time he should have gotten a permanent right right was what's the argument in the record of the property value at that point in time not not today right well he had two offers at the time you know close close there after for four point four million four point nine million which is well above the amount that they did the foreclosure did foreclosure for so the fact that there was two offers for that amount of money would indicate that and i will try to find that for you i know there was lots of evidence of estimates there was an appraisal at the fork of time for closure yeah but i'm not sure exactly i don't know if i have an exact date of when the foreclosure was but there was certainly estimates i know good morning your honors me please the court robber let on behalf of wells fargo what drives the vast majority of big office appeal is the contention that he was entitled to an adverse in france that guaranteed him permanent loan financing this permanent loan financing guarantee existed regardless of how much money he had the bank regardless of the appraisal of the property was a commitment letter that seemed to indicate that if he'd managed to build his house within twelve that is correct within the twelve months yes outside of the twelve months no because too many things can happen income can go up and down bank accounts can go up and down there can be adverse impact on a person's income their assets their ability to repay anybody any of this to mr lister or to write him e mails for instance the one that says to r s sixty one there are two loans for can for a construction loan one for the construction pay and one one of the long rolls to permanent financing and for each phase or separate set of disclosure that the roles department of finance and suggests doesn't suggest that a change in circumstance doesn't within twelve months after twelve months your honor the the borrower must requalify for that loan debt and that's in the exempl language of the the marketing materials in the example are there is no reference to permanent loan financing so the marketing materials which mr because got said you got a year twelve months your honor and what evidence is there that he got those marketing which he claims that he did not get those marketing materials you had marketing materials that said that but there's no evidence that he saw them that it your honor he denie that he saw them that is correct so so tell me what evidence there is that he knew when he signed up for this loan and everybody agrees you promised permanent financing the question is whether that promise in effect expired after a year after twelve months yes your hon if it if it happens within a year within so tell me what his missis understanding if there was one seems to be that he had more than a year what's the evidence of what he knew about this one year limit the note the deed of trust construction loan is due in two years but your promise to roll into permanent financing is in here and mr rostrum is alleged to have said word summary judgment don't worry you're guaranteed permanent financing in a rollover so the question is what evidence is there that this guy knew that it only rolled over within a year the note is dated after the is there anything else that he saw that we know that he source signed that says he the program disclosure that he signed at the time the loan originated specifically said twelve months i want to meet with the reference and that is this within a year but not after that he his signature is on the program disclosure and there is a provision in the program disclosure which says that that the credit approval documents are good for twelve months the same is of the loan commitment letter which also names various conditions that needed to be satisfied in order for him to qualify for permanent loan finance and i think that the most important piece of evidence that there was no such unconditional loan guarantee or permanent loan financing guarantee your honor is it s c r one seventy five to one seventy six and that is the letter of jeannie stewart his own attorney and his wife ex wife who specifically in that letter indicates that she is aware that he is not guaranteed permanent loan financing and last he has a significant amount of funds in the bank so here we have his own attorney who said she had met with mr rose drum several times  your permanent loan shall float in till you lock in an interest rate and points and add paragraph eight back on talk about a year it does not talk about the twelve months you're correct your honor but it's specifically says that the term shall flow in other words that there is that just maybe he will give you a loan but we can't promise the terms tell me where i mean i'm looking in this document i don't see the words are twelve months or one year in them so tell me where they are in the program disclosure there's this the term shall float in the first pacific question ok something in here that says our commitment to give you a permanent loan last only one year that isn't in this specific document one of the specific documents in the record is it is the in the loan commitment letter  i'm looking at frequently asked questions i'm i'm looking for example your honor at e r one seventy six to one seventy seven claiming that this was a contract and that wells fargo had breached it on appeal he takes a completely different tack and he says that this is not a binding contract sued on it in two thousand don't up position questioning or declaration that references it specifically is that what you're saying i believe that it's referenced in his in his declaration in opposition as summary judgment in order to provide this cite your honor i would need to submit a letter like that that's what we're struggling asking for help with going through the records but we've taken you over your time i don't  will be very brief in response to the court's questions about the damages and i'm looking at the reply brief on page fourteen that says that the us or the there was testimony that the in two thousand  i don't think it is page fourteen but i did see it so there is evidence that in two thousand and ten the property was appraised at far in excess of what we have now the loan was oh here to start page twenty four of the  as far as the commitment letter with the twelve month statement i don't i don't recall that there was any evidence either way that mr beck off saw that that's in the record i know that it's argued  saw that up obviously you signed a lot of documents that one wasn't signed but one would suppose that it was within the the documents signed by the title at the title company but i can't guarantee that i do think that they are twelve month statement is certainly ambiguous what the what the document says is that the credit is the credit approval is good for twelve months from the construction closing it doesn't say from the construction loan closing so that certainly could be interpreted to mean you know after the construction is done then you have twelve months after that and i think that it was entirely unclear what that man and i think mr there's testimony that mr baker off believe that they can some of those conditions there were work the conditions to get the construction loan and they wouldn't have funded it at all if those conditions hadn't been met not it was not clear to him that this these were conditions that were supposed to be met after the construction was complete