to know how do we i understand he had an understanding that he would have to answer the complaint well i don't know what i don't get is once they sent him something that says we're going to ask for a default judgment he didn't seem to do anything at that point you want to he really didn't understand the process that was going on he had sent a letter on june fourth to this to kirk plaintiff's counsel confirming his understanding that he had an open extension to answer right  and basically stating that if the plaintiff was going to file a default that they would give him an opportunity first to file an answer and they sent them this motion that they're going to take judgment against him by default and he did nothing in response to that apparently not your honor and at that point in time he was he was trying to find the source stock to get back to the point if in fact prior to their filing their default judgment he had given back to fifty thousand shares so he was under the impression that while he was obligation to find out if i'm bonafide or if i have the authorization of the corporation yes your honor however the the standard for having a mental meritorious defense is not a very high one mr cashman didn't believe that he was operating properly he did not he did not intend to do anything wrong however these are the facts that he's averting his affidavit and because the standard is not very high i believe that  if use of discretion under three factors whether there is excusable neglect whether the marriage or yes the fence and whether the plaintiff will be prejudiced or could be prejudiced by setting aside the fault judgment here under the first of those factors i think it's clear that there is no excusable neglect in this case the defendants knew where all legal proceedings that were going on against them the length of time here several months through that the proceedings taking place the complaint was filed in april thirtieth there's no dispute that cashman received a reasonable op a reasonable time to file an answer to the complaint and he had more than a reasonable amount of time to file an answer doesn't it say you won't take a take of all judgment against me without without prior notice seventeenth so the defendant defendant had approximately three months of file or even any type of appearance or file any type of answer in a district court and they never did i think three months is more than a reasonable amount of time to file an answer w surprise to mr cashman or any other defendants if you had committed an affidavit claiming that he never received service of any of the pleadings or the motions he certainly would have done that and put that is affidavit and we would have responded accordingly but he never raised that issue and he's made no contention that he never received adequate service of any of these documents or at the time he filed his affidavit or declaration he was still apparently operating without counsel that correct  for all the defendants and they never raised an issue that nothing's been served on them and then they had adequate opportunity through review the pleadings that were on file with the district court all this has been done in the properly receive any of these documents on one level not sure that significant but as i understand from your brief the character characterization you have of the discussion between mr kirk and mr cashman is that mr  actually told cashman he would receive notice of default before it was entered not that he would have unlimited time to file an answer but the description you gave me a minute ago didn't suggest that he didn't receive notice of default before it was entered if you said he received entry of default from the  did he in fact get what mr kerr promised to me would get what he would be getting he did get notice prior to the clerk entering we only filed the request for the clerk to enter d falls on june tenth the clerk didn't actually energy fall until june at least two attorneys back to him claiming that mr they'd be representing mr cashman and then we never heard back from either those attorneys or mr cashman so it's uncontested as well that mr cash and was in contact with at least two he was not authorized i'm not entirely sure what mr give a's role in this was your honor how can you say there's not a meritorious defense if you don't know if they had authority or not but he's never been an officer director of the sas and if he dealings worldwide he supposedly claims in his affidavit he was paid going to earn a fifty thousand dollars fee for doing that so clearly he had a high level of expertise since june and july he had been in contact with two is basically about fairness and in june june of two thousand and three june fourth of two thousand and three mr cashman spoke with mr kirk thought he had an extension to answer the complaint wrote a confirming letter that effect on the same day never got a response back saying that that was not the case later during that same month he discovered a certificate of fifty thousand stuff from the sara contacted mr kirk return those stocks mr kirk  they were he was trying to he didn't think he had stocks he did not you know not believe he had any stocks at the time the complaint was filed run he started investigating to try and find where the stocks were he found one certificate in his papers that represented fifty thousand shares  wanted to return it in response to the complaint and he was trying to do that and he thought that by doing that he would be staying within the agreement that he had with mr kirk mr kirk admits that he told mr cash that if you return the stock that would go a long way towards mitigating the damages against his client and and resolving the case and so mr cashman was in the process of trying to do that when they were going about i'm getting a default judgment against on that regard your honor i believe that the court below the abused his discretion by not putting aside the default judgment your honor also i thought as for not looking that that statute if you would like i would i would be happy to send something