you good mornings your honour's on insulation haycock i'm here on behalf of for us like to reserve two minutes for rebuttal thank you so i was looking at this case it struck me that there are three things that are dispositive of both the enforceability of the guarantee and the consideration the first of them is the question of definiteness which is to say that when looking at guarantees under new york law what they ask for is a definite notice in the extent of the obligation and the reason they do that is so that they can hold a person to what he has committed to and no more in this case the guarantee has a definite obligation it states the dollars particularly on the face of the document secondly the guarantee is not required to do that  well actually there are cases where they don't state the debt the amount they just say all payments or something else are nearly at the time any guarantees uttered is issued one doesn't know what the extent of the debt will be at the time problem and often they will say all payments under this contract or whatever in order to end to support that and that's been determined to be definite in terms of extent but that extent of obligation is something that is held to be precise and where that comes up often is in the cases where somebody guarantees a certain debt at a certain point in time and then somebody takes out other notes and then tries to put those other notes under the prior guarantee and the courts say well you can't do that you've you've all only guaranteed what the what you're talking about now is not what what what was involved in in this case what was involved in this case was that the was the the the issue whether this could be viewed not as a personal guarantee but as an undertaking to make sure that the that the company pay actually i i would brief reign that a little bit because the document itself was certainly a personal guarantee and it was a personal guarantee that was in the context of an offer that was made by mr o's company to say well i as a company which was in existence in august two thousand and fourteen and it was it o who sent a document and let me get you the exact records citation of th so that document is it j three twenty seven and it j a three twenty seven there's a document that was proffered and it was sent by jaker on behalf of tribe becca gear and of course try beck is the other name for flash ventures and it was sent on august first as a counter to the guarantee that was ultimately signed and it says flash pinchers inc acknowledges its outstanding balance with press go company limited and commits to completing a good faith discussion on a detailed payment plan and method at the soonest possible guarantee no doubt was rejected specifically by for esko pressed that does not give a personal guarantee we need a personal guarantee after that they sent back a guarantee that says i albert promise to pay flash ventures in outstanding balance with prescott company limited the only thing it left uncertain was the discussions about when the payment method and how it would be paid would be done that uncertainty if it's looked at within the context and i can give you the pages in the record of what was going on between april and august two thousand and fourteen mr had multiple ventures he was trying to start a new company i q licensing in order to start the new company he needed to get new financing in order to get the new financing he had to take care of the fact that he had an outstanding debt and that outstanding debt was under tri beck and flash venture and he knew that he had it he wrote to his new i q licensing part her in april and said this debt is a problem for me i need to resolve it and i need to take responsibility for it you didn't read in addition if it doesn't it say over his signature under his signature a joint surety it does say that your honor just out of curiosity do you have an idea why does it say joint i do not have emphasis is on the fact that it says surety correct but you don't know why it says julie i don't know it was translated from korean and i'm not sure i'm not sure what the translation was done and how structure a way to move from a company that was not doing well financially to a company that they expected to do well financially and in doing that they came up with a limited partnership they came up with an l l c they came up with other structures and every time mr o said that's going to stay mess up our financing we can't quite do it that way but i will find a way to get you the equity that will cover the debt i owe you and that's the context within which this document in effect the transmittal letter itself all that you've just recited designed to  why he would sign the guarantee is that the it's all it's also the definiteness of the guarantee and the consideration well the definiteness must come from the document in the end it does come from the document i promise to pay all those reasons or not doesn't help us decide whether the district judge was right in thinking it was indefinite or it does your honor because the definiteness needs to be in the promise in who is promising and on thought the second sentence which you didn't read but it's there of course the ones in the judge's view the uncertainty about the payment method rendered the guarantee indefinite what do you say about that i say that it does not render indefinite and i also say that new york law says pacifically that you can have indefiniteness on terms other then the obligation and the promise to pay and who's making the promise to pay and on behalf of whom all four of those elements are clearly on the face of the guarantee there are things that are far more and indefinite as your honor has recognized where the court says that's perfectly fine it was perfectly fine to say to a maximum amount of blank in lone star and then enforce that guarantee even though there was a deliberate blank left there there are cases where they say you can take and resolve something in steps and in parts and as long as you are recognizing that those parts are resolved that isn't in forcible contract you what about consideration the consideration here was that you had and that's is why the april to august is important you had mr o wanting to change companies and change businesses and raise financing in order to do that he could not have the enforcement of the debt move him into bankruptcy and he could not have that debt showing on his do company's balance sheet that's the whole reason that those negotiations are going on and it's the reason that for esko says i understand what you want and i'm willing to work with you that's illegal detriment i'm willing to work with you and i'm willing to hold off forcing you into bankruptcy so that you can get this new venture if you give me a contract the letters you've been giving me don't work they're not adequate about the language i try to finish this question for detail payment as soon as possible and promise to implement that have a bearing on consideration your honor that's actually demonstrating the consideration when taken in the context of it the letter that says look i need this document to make reference for what we're doing with the limited partnership things it's what he's saying is we've agreed on equity we've agreed that we will have this as part of i q ventures we will translate it but you keep telling me it can't be in this form and it can't be in this form i'm willing to work with you on that that's why that willingness to work is the detriment that is consideration you've told us that the definite and perhaps also the consideration is supplied by what you call the context and you recited a lot of facts yes your hon to the document itself only ground that yes your honor although in sun oil which is the new york state case in one nine hundred thirty four that's been followed all the way up to two thousand and seventeen by this court and others it says that it's of necessity that you put a contract in transaction in its context so that you understand what it is that is the intent of the parties i'm not sure i'm not challenging that what i'm what i'm leading up to is this question if this turns on the so called contextual facts is this something that needs to go to a jury to do some fact finding rather than a decision as a matter of  it's possible to conclude that and i would understand that inclusion if i cross is whether it's possible is whether that's the right thing to do or we don't need to do with under sun that context is a little different than finding an ambiguity in the face of a document if you determine that it's because the document is ambiguous absolutely it needs to go back to the district court for a trial that that's clear from all the cases  yes first position as it is definite and of even though the payment method is left in doubt that's correct and out of interest and why you why you said the judge newman in response to his question couple of questions back that that is it that the definiteness comes from extraneous facts i mean your position is your position is that you simply look at the document the document definitively without ambiguity as i promised to pay and identifies the signer as the surety that's correct i think it was to your generation then i meant your argument is not that one needs to resort to  two extraneous facts as to as to what all this grew out of in order to find definiteness that's correct it was as to the consideration that you needed to put it in the context isn't it true that the the party  after the signing of this remained never referred to it as a personal guarantee your honor the parties were both working toward implementing this guarantee it's only a few months later that we began to enforce it when once he abandoned the steps that he said he was going to take i think there's a new york law require consideration to be recited in a contract it does for real property but not for a guarantee there are two different statutes of frauds and in a statute of frauds under a guarantee or an answering to the debt of another as the statute uses it that's five seven zero one under that context yes i'm not either i agree with that i'm not sure on with that it seems to me that if that because of the language i tried to finish discussion for detailed payment method in as soon as possible and promised to implement the as soon as possible take imagine a circumstance in which immediately after the signing of this document say the next day your client instituted suit against o to enforce it seems to me that oh i would have a defense based on on this sentence that this sentence could be contrived construed and seems to me to mean to imply a promise to on the part of of your client to forbear from bringing suit against zero for at least as long as to allow these discussions to be done as soon as possible and for him to implement and if that time passed without anything happening then your client could sue but it seems to me there's a strong argument that this implicit in this is a is an undertaking on your of this i'm a story to sell balance is exactly how it was presented at the time and its undisputed the very reason for its existence was that for us company was in the hit on you because of your say you're saying that their position was to him sign a guarantee for us that we can show our orders so that we can get accounting advantages that we so that we be in a bad position with respect to this uncollectable debt we don't really intend to enforce it against you we just want to show that we have a guarantee now because it's not that's not said they didn't they never add they never spoke about it as a guarantee they never had a context will discussion about ever in the woods or includes words i the outstanding balance that's they wanted for purposes of their accountant and and i mean what you're telling us is we don't really intend to make you pay we just want to have these a contract with this so that we can show our  what they are saying they don't for their own purposes they say do me a favor mr o do me a favor and sign this so that we can have something for reference i was the term for reference that the clear words of promise to pay have to be understood as fingers crossed it really was only intended for something that you show your accountants to solve the problem of uncollectable  nothing of that definite sort was presented here be looking exactly to how this thing came into being came one day after a discussion about we have these problems with our auditors we don't want to take a write down where you who for whatever they didn't for reasons best known to themselves they did they need a piece of they need some is that your argument that if somebody gives a promise to pay in precise terms but they give it for a reason to satisfy some accountant then it doesn't count is that your position well if it's part of it your honor because there's we were the consideration there it's with that part but what's the basis in law for saying that if somebody signs a piece of paper that commits him that is a specific contractual undertaking it's not enforceable if the reason he signed it second sentence shows provides i will leaves open the time of performance the manner of performance now you're on to the next point let's stay with a definite document a signs and says i will pay the one thousand dollars and i'll pay it in cash and i'll pay it by noon tomorrow is that it is not an enforceable promise without consideration no has a definite enough as i promised to pay is that it is i promise to pay four thousand three hundred twenty two dollars on march twenty second at noon well that's the forcible if that's the only thing it says that if that's if the first if the sentence  don't have an answer that satisfies me to your question well how but satisfy if someone signs a yes with her value received i promise to pay which makes it a negotiable promissory note as far as though it doesn't say to the order of oh don't don't don't don't bring this into another body of law it's just a piece of paper that says a promises to pay be a fixed amount in cash at a day certain and it acknowledges consideration is that a contract the absence of consideration no it says for values for for a ten dollars receipt of which is hereby acknowledge i don't believe so your honor because the tenth because what it raises the question what as you stand there ok it's got all the things you say needed to be in a contract you've got it in mind ok is it not enforceable if the extrinsic evidence shows the parties signed it for reasons other than an expectation of performance then i think the document suffers from the fact it does not represent a meeting of the parties minds as to the subject matter of the agreement because they had this other mode is that right yes so if a if a contract and parties have a motive that arguably indicates they are not serious about enforcement there's no meaning of the mines that your position it's true there isn't there's no meeting of the minds exactly so i understand your position to be  that that if we have this kind of a circumstance where a company a company has incurred a debt large debt and a half million dollars to  and the company can't pay it and the obligate is in a position in which the the presence of this uncollectable debt on its balance sheet is going to make a big problem for its dealings with the outside world including for starters it's orders who have to certify its balance sheet and it says to the principal the principal stockholder of the owner of the company that is the on the go or i need to kind of defraud the accountants and the outside world into making them think that my balance sheet is a lot more solid than it really is i need to i need to borrow money from banks and they're going to ask me what about this i'm collectable  looks like you're insolvent so i need to be able to show them that this i need to be able to pretend to them that this is not and i'm collectible that i need to be able to pretend to them that it is a collectible debt because it's guaranteed by you so that they will lend me money so will you please sign this promissory note a note which as judge newman asked you says all the things that you say need to be in a note to make it sufficiently definitive so under those circumstances that note is signed not with the intention to to to have it paid but with the intention to have it used to defraud orders and banks and so forth that's not a guarantee that's not enforceable guarantee the your argument that i agree that is not an enforceable guarantee that's your argument my my argument is that on that in this part this particular thing is not it's neither a guarantee and the consideration is there runs the wrong way it's do me a favor don't do yourself any favor you're getting nothing for this i need your help help me out sign this thing i need to use it for something over there but the but the thing is done in such a way the thing is done in such a way that they want to they want the accountants to be satisfied that it looks in forcible so it will recite consideration and not only will it recite consideration but if the party is smart and say look i don't want to just to recite consideration i'm going to actually give you ten dollars  to be actually ten dollars exchanged that they really will be consideration for this phony for this phony guarantee intended to defraud others your argument is not in force argument is that would not be enforceable right that's why that's what i thought i understand your argument but the the real crux of this i mean the person all that document wasn't drafted by mr o it was drafted by mr chan it was mr john the record shows didn't claim not to have any recollection of what he was doing at the time but he did express ten times at least over the course of proceeding months in fact it was the only context that was presented now so assuming that you are assuming that you are right this your conclusion of law isn't a matter for summary judgment if the if the  the document on its face shows itself to be an enforceable guarantee but the argument is made that the factual context out of which it rose shows that there was no meeting of the minds of what there was a meeting of the mines to a contrary purpose to a meeting of the minds of this document should be understood by both parties as a phony and not really intending what it says is that something that in these circumstances where that hasn't been agreed to it's amenable to summary judgment i mean it's one thing it's one thing if there's a factual dispute to find that the fraudulent intent under that shared fraudulent intent undermines the stance of the content of the doc but this was a summary judgment well that might be the case if it weren't for the consideration argument there would be possibly some debate that could go on a jury style debate however undersell attacks when we presented in the motion spoiled blank there is no evidence of consideration to support this it is conceded that the consideration is not hard right in the document right what about the sentence that i read to consideration as a part of why isn't that a a promise on the part of the of the party receiving the guarantee that i won't see you tomorrow i will hold off i will hold off for the court if if  suit were brought tomorrow or immediately after signing this document the argument would be made by ok they promise to not to sue immediately this is to give give time for discussions after that they can sue but not now we have mr chung's testimony on that in the record and that says that he was asked in his deposition was there any discussion about forbearing or lawsuits or enforcement and he says affect bay sensually i do something some day in the future or not i promise to implement is not a bargain for exchange of anything supposing that documents said so in the documents and in consideration of this guarantee i promise that i will not sue you for at least thirty days to give a chance for us to discuss and work this out and then the testimony was exactly as you say there was no bargaining for it there was no discussion of it it was just there in the document it sounds like a four variance agreement to good is there no consideration in the circumstances the circumstances described describe before barents agreement as it is commonly understood and forbearance agreements can be can be consideration but in this case there is no forbearance agreement nothing resembling a forbearance agreement and it's not concurrent point  didn't agree to for pay or it's just that mr o himself talked about forbearance well he never talked about forbearance that question that's in the record you don't regard this as forbearance oh it's not parents it's somebody says here do me a favor i need this for my orders there's no suggestion in the context read the second sentence he's not going to going to stand ready to pay on day one is that fair to say he says i try to finish as soon as possible that's not day one right sure that's not so he stopped going to pay right away he's not going to agreed to pay right away was not going to agree to do anything ok ok but the creditor did say that's ok with us is that your point the creditor though didn't say anything whatsoever they they took the document and they  this is not forbearance because the creditor didn't agree to forbear so your point well the it would be bad point i don't know why you don't know if the creditor didn't i maybe i'm being overly cautious here and all that happens  but when something is agreed it takes two to do that tango and if someone in that understanding is not in any way shape or form mutual unilateral undertaking is getting nothing for it if we sent this back for trial and a jury hearing all the facts said well the creditor didn't sign this as a formal forbearance agreement but the facts show th that the creditor was willing to accept this as a good guarantee with a forbearance if the fact that to a jury satisfaction might be different yeah well attacks there would have to be a some evidence of such fact that to allow one to get past a directed verdict and in this record there is an absolute void there  d by both sides no concurrent meaning at simultaneous with the execution of the subject instrument not past consideration or some future consideration but concurrent already concurrent right now the minute he signs it he's saying he'll be forbearance no he's not saying there will be forbearance he said i've come back to it there was no agreement on anyone's part that there's going to be i want you to hold off for a day week month or year to take action against me and converse and i agreed to hold off for a week day month or year we don't get to that there's absolute indefiniteness to that i think a forbearance agreement needs slightly more then vague speak just like to call a couple of things to the court's attention in the record first of all a j a to twenty nine and j a two thirty mr chinn's deposition testimony there are specific places where he talks about the fact that they were considering lawsuits at that point in time until the document was signed the document was drafted at mr rose request by mr buy for us go for us go send it to him to sign and the forbearance the binding if if the guarantor is the one who forbears does or doesn't the creditor have to be the one to forbear owed some money that's correct and they say we want to guarantee agreement and the guy then goes off to his office and he writes a guarantee agreement and he says bill for bear he did talk to it for us but he just it all for bear and then to draft an agreement which he did using korean forms you're saying there's there is available extrinsic evidence that shows for resco was forbearing because they wanted this kind of language because they honor it depends on the way you view it because under it and i've got the case but under several of the cases you look at all the documents both signed and unsigned that form the essence of the transaction and if you count those documents as including the transmittal letters if you count those documents as including the rejected prior offers from mr zero then i think it is absolutely clear on the face of the document what the consideration was if you look at those as not being opposition that if i look at all the other documents it becomes clear on the face of this document is that well well i'm it i would consider in this case to be the negotiations back and forth forensic that's extra encik but there are here three documents that could be viewed as proffered contracts or drafts of contracts and the transmittal letters that are sending those documents those documents rise to a higher level in the are you now saying that i believe that that's correct but i believe that if you look at those as extrinsic evidence and find an ambiguity that it would have to be resolved by a jury i don't understand why you don't realize simply  at least argue that you can never live without resort to the other documents on this document which is and big us but within that ambiguity could could lead to construing th sentence i try to finish discussion for detail payment method in as soon as possible and promise to implement that that sentence implies ambiguously an obligation on the part of the of for forbear for at least as long as as soon as possible and compass it is and that you don't need to go to other documents and extrinsic evidence to find a recitation of consideration now of course it doesn't show it it doesn't show the consideration with clarity it could be construed in different ways but it seems to me that if suit were brought if suit had been brought the next day seeking to enforce this guarantee you could raise  evidence would be raised that would be that would be arguably viable it would not be frivolous the say that this sentence should be construed as a forbearance agreement to to forbear for a short time so that these discussions could be happening no i agree with that and i agree that you could use it in exactly that way the only other thing i wanted to clear up i guess my time's up  throughout two thousand and fourteen in two thousand and fourteen in two thousand and thirteen two thousand and fourteen in february there's another audit but all of these transactions in the documents we've been talking about are taking place after that audit between april and august there was nothing fraudulent here and your adversary characterizes the circumstances as one in which in which your client was essentially seeking to defraud the world a by getting a phony a phony guarantee and what about that if it's absolutely false and why is that why is it for us i mean i don't know whether it's false or not but he says that the that the that the evidence would show that this arose out of circumstances in which in which your client said to him we can't have this uncollectable that on our  books it it's a big problem for us we need a piece of paper to show our accountants and the rest of the world that this is not a none collectible that it's guaranteed and that's how this circumstance came about that's how that your client came to mr owen and was induced to sign something that looks very much like a promise to pay because it says i promise to pay what about that does that affect were true and came out in trial there are so few defenses to a guarantee i don't know that it would have that it would have affected if somebody had a bad motive but in fact if you look at the documents themselves in two thousand and thirteen he's saying what i need is a payment plan because you've incurred debt and i need the debt paid in two thousand and fourteen it is a proposition that he will have equity instead of debt and he says if that's going to work i need to document that because my auditors will not accept an idea of something without being able to see sought american counsel an american council said perhaps if we put something in that is self executing that has a confession of judgment clause that has a number of other things and drafted a multi page agreement in response to which mr o said my lawyers are looking at it and we will read draft it but they never did thank you thank you your honor thank you both