declaration says in substantially similar form it does not say that that is what was signed the nd problem is even if that weren't the case the part that the declaration cites to which is step for review terms and conditions on apply does not say anything about arbitration my fair problem is that what's attached is cut off on the nd page so i don't see how that's a true and correct copy of what was testimony is that the agreement attached to his declaration is the agreement is more what it was talking about the actual agreement the court said that things like the actual agreement would would seem to be enough of that agreement is enough for the agreement it seems like it would have to be enough for an application whose function here is to substantiate when ships clear testimony as to how the application process worked on loan what is the language from the declaration the you rely on and showing that mason understood let me send receive a copy of the actual terms and conditions relating to arbitration because it looks to me like the part then decided and doesn't mention arbitration maybe i am reading a there he says that mesa could not have open the credit account without click yes like so if these terms verify accepted the terms and conditions quote a true and correct copy of the applicable web fingerhut credit account agreement account agreement governing at the time mason if you compare it to the account agreement that is in exhibit d it's exhibit c but we're talking about right your honor but the account agreement attaches exhibit c is consistent the only thing i would say to that question just rosenbaum is it cut off but it appears that everything related to arbitration is still instead of denial of a motion compel arbitration there would be this is still at least competent evidence that's not it's more than a scintilla that mason agreed to arbitrate this through a quick rap agreement or trial being a and do it right we generally require that the party who's pressing the alleged terror have asked the district court to do what it's asking us to reverse the district court for not doing you know mr that party would have to ask for that premature to address the issue well if the court i think this court could conclude that it was inappropriate for the district court to deny the most compelling arbitration outright that issues of he can't determine the issue and therefore the only way to resolve the making of the agreement is to set the issue for trial a summary trial proceeding under one u s c section four what would be additional evidence be that the construing the facts in the light most favorable to you you don't win no your honor he's concluded that considering the facts in the light most favorable to the non move that's correct i'm not sure ross see the conflict in the testimony what it would be certainly there are no affidavits conflicting i mean you make general statements and the response is that's not specific enough you know substantially so there is no conflicting evidence here it's simply is our evidence good enough and the way i guess you could get to a section for trial is our evidence that time were these are not declarations from my client well let me down to the bottom of everything that pays more said was missing you have said is included here  i'd ask for to continue to answer the question no it doesn't hurt it is perfect in closing that loop but these are the terms of conditions effect and they are the terms and conditions that displayed when you clicked on the hyperlink or others played on the page through what appears to be a scroll box above so i will agree with that i don't know that that's why isn't that a problem well i think it at worst for me it's certainly something you could infer from that statement which again gets us back to if you could draw the inference that we hear him through a section for trial that's a genuine issue of fact that's something that would have to be resolved by a fact finder i think that it is there doesn't seem to be a credible inference the other way it would he just stand now i mean if those are if the terms and conditions are exactly the same as the agreement why wouldn't you just said or i wouldn't mr when ship just say he agreed to the terms and conditions which are precisely the same as the agreement why not attach a copy of both to show that was just about as i understand paragraph eleven of when ships declaration that is what when what when this declaration was drafted that was the end what this paragraph was intended to me it maybe could have been stated more clearly than it is but it again at worst for my client i think that's an inference that you can draw from the statement and therefore if since it could be drawn from the statement i think the issue has to be set for trial at  i like to address them in grief i'd like to talk about the mailbox issue at some point before you get into too much of the other can you do that sort of a writer is there a specific concern that well you seem to maintain the door to mailbox issues that utah has a separate mailbox issue than the federal mailbox issue  affidavits would fail in any court in the united states because they clearly failed the baby's more standard i also have here a list of district and circuit court cases upon which talk about the mailbox through our what's at the opinion in that case it's talking about what the contract the insurance contract provided about its mailbox room incorporated into a contract between the two parties in that case that's different than what the mel baku would have been in utah had there been no contract to agree to it is it not your i would argue that these affidavits would fail any mailbox and i know that  you're saying don't worry about i win anyway what i'm asking you is wasn't mccauley to about a contractual mailbox rule that the two parties agreed to and therefore is not directly relevant to what the you tell mailbox rule is regardless of whether you win or lose under it i believe that there is i'm sorry your honor if you can rephrase the question now both except as a premise that mccoy to the big utah supreme court the most recent utah supreme court decision states a rule about the  mail box room and my question to you is if you read the case isn't it in fact stating the rule that the parties agreed to for purposes of that one contract insurance supreme court spoke to but your honor the standard of what constitutes a mailing for the purposes of a presumption in court that a party received and you know considered it had substantive agreements with those elements is the same throughout these united states not if the parties agree to something different freedom of contract you can agree that unless there is a video of the recipient obtaining the letter or the package from the mail it won't be presumed to have been mailed i understand the court's point that that case may be factually distinguished because of the presence of that that was sent is a template agreement which is quizzical because as was observed by opposing counsel it is an identical agreement to the one that they admit that they assert is somehow the exact agreement and as the court has correctly noted it is impossible that these specific documents were the actual agreements because they are missing pages also if the court notices they are out of order and most importantly mr winship has no personal knowledge of what occurred after he sent the or after the records reflect that the item was sent to a rd party supposedly for mailing and so under any federal rule mr winship is not competent to it does not say that he reviewed any business records from these rd parties isn't a problem anyway because he only knows what blue stemmed and he doesn't now maybe maybe i'm getting it wrong he only knows when his i think it's blue stamp he doesn't know what image or whatever the next one once did when they supposedly sent it out yesterday and if i may remind the court as to what the underlying allegations of this case are the underlying allegations of this case involved the purchase of junk debt accounts with insufficient documents and the use of affidavits in course that are conclusionary and deceptively worded such as to imply that they do have the actual documentation and so the court honed in the present status of how these specific affidavits were created or that we already won the motion to dismiss in this case we're now three and a half years into this case and this case was discovered because the defendants paid almost forty million dollars in restitution for allegations concerning deceptive affidavits that were worded in a david's presence were only created none of these afghans have personal knowledge of anything that occurred all their capable of doing is pull up a file which in my experience has five dollars to ten dollars pages look at it and then craft and so there's nothing new to be added to the record they've they've had their bite at the apple a business records what about it what about programs thirteen makes the status later on about what rd parties did to create the implication that he has st hand knowledge for review of the business records of rd parties but he clearly did not have such knowledge and did not review such with it i can continue are there any other concerns that the that the court may have perhaps concerning the name an affidavit i actually believe that these two affidavits have other internal inconsistency as that further should make a exhibits two dollars and three dollars were exact copies of what were censored but if you were to examine them it's very clear that those are drafts or they have all kinds of markings on the outside that demonstrate that they were a template they were certainly not so what was actually sense and so that that income group would make one doubt the veracity of his name ins all to mit's conclusions as well we need to know what the consumer would have seen on their computer screen and it says here in the affidavit that the computer screen would have shown him a document that includes both the application as and the terms and conditions and the court correctly honed in that even though this affidavit was drafted to meet the base more standard they play word games switching from terms in conditions to saying what governed the account and  it we're here to question whether the affidavit is sufficient we really are two questions right there one is whether it's sufficient to meet the minimum standards of evidence for the court to consider it that means you know is it derived from personal knowledge is the personal knowledge derived from sufficient review of business records and or those business records regularly kept it bresso these credibility we can't determine credibility i i'd like you to talk about the mailbox through to must remain you didn't do it on your direct yes this is very quickly if i could clear something up for judge rosen bomb i think if you look at the attachment four and so if you look at the nd page the rd column is actually the th page the st column of the st page is the th column and if you read the agreement that way the entire agreement appears to be and that's your direct and specific evidence circumstantial evidence mason's mailing but when chips testimony is that he has personal knowledge is the senior vice president of how these accounts get transmitted and that is the regular routine practice for boost him isn't it impact these entities do and this is what they do i don't think the court really needs to reach the mailing issue in mason because they actually you know you say you've got circumstantial evidence he used the card so he obviously received the cards so issue really is what was in close with the cards when it was my old and how does that fit into your argument well this is not it was close based on the records i know this was a document that was enclosed he could have personal knowledge based on the review of the records and if the discussion here is what records did he review should he have to demonstrate that this is actually in the records as we alluded to discussion with my friend in opposition those are questions of veracity and credibility which this court ordinarily would not resolve it would send it to the district court to resolve that and section for the f a a provides a procedure to do that so i mason's declaration of i'm assuming a hypothetical nation's declaration is not competent to establish what impact and pitney bowes did after the street well i certainly think the fact that