please the court my name is karen hangs an ever present as the firm vestments one l l c i'd like to reserve five minutes of my time for rebuttal the panel asked two questions prior to coming to oral argument st whether there was an issue of fact as the delivery of tender and to whatever this issue in fact the answer is simple yes there is an issue of fact as delivery of tender and with respect to the evidence it's more the absence of evidence in this case we know that when miles bauer tendered there will be three pieces of evidence that would exist that would prove delivery st we know from the testimony of doug miles that there be a log where the employee would have entered for that particular file they were hired the runner that's an excerpt of record three hundred and fifty seven nd piece of evidence for a start back up that piece of evidence was never produced in this case the nd piece of evidence there be a carbon copy of the legal evidence that you delivered it it was fact the final piece of evidence that we should have based on the policy and procedure is that when any instances involving n a s in instances where they decided or determined they couldn't accept the check they would hand it back the check and the letter to the runner and because of that miles barrett had a policy of stamping the check voided and then scanning and saving that into the system for the file that's at excerpts of record reply brief bank of america versus las vegas rental repair the nevada supreme court found that the absence of the courier slip did in fact create an issue of fact and here we've shown you your honour's three pieces of evidence that are missing so even more than that case now counsel argued in the brief that the entries in the pro last green shot were enough to show that the check was delivered unfortunately bank council's argument is just that it's argument of counsel it is not evidence and he cites no testimony to support his interpretation of those screenshots and when we look at rock young the author of the letter he contradicts the interpretation of bank gives those screenshot entries if you before those dates even occur i specifically asked him close to what i'm getting at is this notation we see in all caps fifteen check returns that is not a notation to indicate that on this da fifty two thousand and twelve the check was returned right answer is correct so this check returned we have the seventeen check return on our prologue shot in this case that is something that was entered well before seventeen as a reminder to process the follow up it is not a moralization of on seventeen the check was rejected but further kind of confirms that while it's not needed but what further confirms that israel knows that the tender letter the letter with the check is dated september nd not one hundred and seven dollars so if they were actually delivering it via runner which we know they did it and he has had the policy of determining at the time the runner was there whether they could accept or reject it that no really was a moralization and it should be dated nine hundred and twenty two so that makes sense what mr young testified to so frankly the bank's counsel argument is just that it's argument there is absolutely no evidence in this case of delivery and at the very least a trier of fact should have heard this i could have should have had the opportunity to argue this drier facts and they should be able to determine is there enough here to conclude delivery and i'll end on this note we have a presumption in nevada at an arrest four hundred and seventy two thousand five hundred and three that if weaker and less satisfactory evidence is offered when it is within the power of the party to be stronger and more satisfactory evidence the evidence offer should be viewed with distrust and i position this we don't even have less satisfactory evidence we have no evidence and so we're trying our fact should have been able to weigh that presumption weigh the arguments of the lack of evidence based on the policy and today no reasonable minds upon hearing about the policies and procedures of mph and the utter absence of evidence of delivery coupled with the presumption we have in nevada about lesser satisfactory evidence that no reasonable mind could differ and only find that it was delivered that's exactly why i believe that you should reverse and re manager on or with that if there's no further question i want to i want to just be sure you are not seeking summary judgment on your behalf you are simply would like to go as far as to say because they bear the burden of proof and they're not going to be able to bear the burden of proof in terms of delivery judge me it should could be entered but as the procedural posture i would i am at this point saying there was clearly an issue of fact that precluded summ to cover all of the arguments that you're hearing this morning specifically on page one hundred and eighteen of the record excerpts as of our head three sentences about a disputed fact but i think only one of those actually bears what we're talking about right now as so far and there's context behind why it might be on publish and that case there's a grant of summary judgment in favor of the purchaser that went up one of the deal between the time the trial court judge granted summary judgment and when it was considered on appeal sufficient as a matter of wall to be a tender it did leave her her judgment untouched to the extent that she found there was a disputed issue material fact as to delivery but it's on published there's a lot of proposition and then one case by the nevada court of appeals that distinguished it to the facts and the record on that case and said that it did not apply to another case were asked of or had follow notice a supplemental authority similar to this case regarding what sort of policy n a s had about record keeping under federal of evidence eight thousand and thirty seven the absence of a reg where you kept a record of business record is only admissible if you establish the threshold requirement that the absence means something and that's intuitive your honour's of course you can't simply say about files missing it when it otherwise be there that has any impact and in our case the only testimony on the record regarding n a s his record keeping practices the whether that screen shot was indicative of what it said it was and also to be very clear that testimony was from a different case mr young was looking at records in a different case and testifying about them at trial and it's very difficult to management screen shot is what told him that knowledge power had sent a check it's what he interpreted as the final word and i want to be very clear yawners in that case that we're pulling this testimony from the trial court decided that there had been a delivery of the arguing that any i should have a copy of the letter with the check in the file what i'm arguing is that we know from the testimony that in instances where any could not accept the check they handed it back to the runner and i think opposing counsel confirm that his argument so what we know from that from doug miles is testimony excerpts of record three hundred and fifty eight doug lot miles balor had the policy of then stamping the check voided and then saving it to that it should be your honor i don't have it in front of me at this very moment i have other people in my office are trying to look it up but it should be ok you i should say your honor i will and i also want to add though some of the arguments you have to know and i'm not saying that what i'm saying is though when council argues well they never talked about the prologue screenshot having this meaning what i'm arguing is that there was no need for us because in their motion for summary judgment they didn't argue that and i imagine they didn't trees meant and my argument is they never interpreted him the way they do in the appellate briefing so there was no reason for me to correct any misinterpretation on appeal in their answering brief they did  interpretation that is contradicted by testimony so yes we did raise that so i'm just highlighting as to why there was no reason for us to argue that in our opposition at the lower level because they never claimed that the pro last green shot was the prime facia evidence of delivery it was the employee here's our letter on its face it was sent and they just made that conclusion so i just wanted to clarify that had they made that interpretation of those prolonged screen shots we would entries in there prove we delivered it they just made a conclusory statement that would andor and if you look at the district court's order he doesn't cite anything as to what actually proved delivery so i'm just commenting on opposing counsel suggestion that for the  time or raising the interpretation of the pro last green shots in fact to them who raised it for the st time in their dancers right there we absolutely believe that it's it's before this course if that's what they're going to argue because the interpretation is contradicted by