position that that summary judgment form was entered in error because there were genuine issues of material fact that existed and it was premature for judgment bank has discretion to take certain actions underneath under the agreement and it appears that is what the trial infer in its september seventh or in the some ten or fifteen findings which are in the record when the states  and whether the bank the banks actions in this case and whether the baby exercises discretion reasonable is a question of fact is for the trier of fact it's not a matter of law so b there was no notice the fall in these demands for me ross had no idea was in the fall and maybe they were before i don't even know but if the pain of the conclusion that they were in so inoffensive befalls trigger certainly you would think they would send a notice of default and they didn't do that and what did they do they said either they maybe they maybe even soaps and secure i don't know but what they did is they made a demand actually big one person did and the record clear without any calculation without any consultation within twelve hours or maybe twenty four hours after that meeting comes back and makes it the man in excess of the line of credit and says if you don't need it i'm suing you ok now i was saying that the other the other affirmative defense that process is alleged is that it was the actions of the bank that caused them to go out of business also after the demands were made in the threat of lawsuits was given to the characters and wrong ross worked with the bank to try to meet its demands couldn't do so as a result they met with the bank and said listen this isn't working we don't know what to do we can't meet your demands we have to close so what is the bank do sw not only have at that point have they made these demands and essentially terminated their line of credit they sweep their accounts without any authorization before they're closed they haven't even closed yet they just said we can't meet your demands we don't know what to do we're going to sat that says one of the indications that one of the factors that's not included in that balance sheet test is goodwill and ross was a solvent company that's that's what the affidavit said again not a matter of law that there was an actual number put on the goodwill you know but he certainly said he maintained the books for years and understood ross's business and the volatile nature of the economy you don't believe you mentioned that done in good faith and in other words i was just talking about this with my fur yesterday my home on my home loans two hundred thousand dollars and i got a vacancy listen i'm not making ends meet right now and you forbear my loan f in the bank come back and says you know what i don't like your financial condition i need you to pledge three hundred thousand dollars in collateral or we're going to form pools it seems to me whether those actions are made in bad faith or questions of fact and that's essentially what happened in this particular instance you had a business who said like your are pointed out in june listen i'm calling the bank to let them know my business plan because we're in dire straits right now we're trying to get we're going to make it again important to note is that ross was current on all its obligations under the note of that time and they say here's what our plan is less than through three thousand negative three thousand six hundred four at the end of december to a negative two hundred fifty six thousand seven hundred seventy one a deep grease and now we're going south of two hundred fifty three thousand one hundred thirty seven  day did you find many i don't know that the motion for leave was ever granted but we did file a motion for leave to file an amended answer and i don't know whether that motion was ever addressed by the trial court in fact i don't think it was you kno making was in secure but the affirmative defense issue that i pointed out earlier is were the actions taken by the bank in bad faith were the arbitrary where they can precisely were questions of fact russians be allowed to resent evidence by way of its c p a to determine whether ross was insolvent to determine whether there was a good will if there was a good will what was the value of the goodwill maybe i'm not talking about the definition in the in the cold there are different definitions of drawing from it just because it was at ten thousand dollars doesn't mean it wasn't going to get paid down and used for purposes of running the business in fact two months prior they had paid a substantial amount of interest which is a sunni principle which is also not matters of law all the questions of fact