not the the loan i would the way it was documented or lack thereof but nonetheless it was made a loan and that's let's start there because this is where judge smith started it seems to be the appropriate place to start here with the same question is the terms of that loan that that was essentially the st question now from mel st statement out of her mouth and while you're right the record is fairly convoluted from there it always comes back to that comment you know where is the assent i understand your point which is you copied somebody with the debtor judge smith said where's the ascent you find it she didn't find any interest in funny term so why is her decision fundamentally on the claim which kind of blows through the other two why is when looking at the record i still can't find any cent from the entity be charged with the loan because that's a question of fact and the interest and the term are far as the ascent the argument he made at the lower court and we talked about it our opening brief is again it's not as clear as it should otherwise have been but notwithstanding that there's this e mail is not an exchange that was the whole problem with with judge smith there was no exchange you copy there was no affirmative assent you were extrapolating and i haven't seen the citation that silence in this regard there was never an e mail from the debtor to you in your chain which is a couple e mails but that seems to be what troubled her from the beginning is that you said you know look we're going to call this a loan they come back and say no you were just funding obligations that your own family of liable for the difference is in there but there's nothing to bridge that divide to say you agreed to take this as a loan but we cited section six hundred and twenty four of the civil code that says that if an email is sent such as the e mails that we had in our in our right in our motion and are objection i guess our response that claim objection and which we include with this appeal they tried to make the argument that the someone was somebody who change you know empty the trash cans or something it wasn't that someone that someone wayne thompson as we put in our declaration was the director of finance well that briefing and they dispute that he had he was an officer at all but he had any contracting authority that's still missing the point where is the actual assent he sent the e mails the assent which you know they don't want to talk about and that was part of their motion eliminate the debtor's on books and records says long that wasn't before judge smith that the claims objection hearing and that's what we raised in the in the motion for reconsideration and that we're getting back when you're getting ahead of the game when you say you want to get there but her point was before her why was that decision wrong you can't you can say you can argue and i'll give you time to argue that you should have been given this time to go back and bring the documents that we failed to give to the objecting party and to the court but it's clear at the time of that st hearing those documents were not there that information was not provided the matter had been continued you had got an extension on your request for production so let's look at that time where is the cent given to judge smith at that st hearing and yet our position as the declaration of david kim corporation yeah ok and who i mean this is they and then mr thompson to you who you purport was the c f o controller and of course they're going to say he was ok and we said in the in the most  reconsideration and again i'm trying to keep the bucket separate and i understand what your honor saying you know keep the bucket separate but they're such on the fact that the the initial motion for the claim objection came on up i'm not going to say it's a relatively short timeframe but we did out that i was out of contact sort of speak for a month or so they did give us a continuance at the time that we had to file our opposition we had what we had it wasn't really your opposition to  back you're honors question we go back to what we initially said which i don't know why well st of all the fact that it was basically dueling declarations my client's declaration david camm which was basically disregarded by judge smith with all due respect to judge mit yet the only evidence they had was their declaration of david douglas patrick that said there was no law ok so we have dueling declarations and keep my we tried to raise this at the hearing on the on the claim objection whatever that was july t that this was let's keep in mind also that mr patrick had our race a credibility issue she says i don't want to hear that right now and it's like wait a minute we had a five million four hundred thousand dollars judgment against mr her point i believe that that was going to be credible for one reason but credible not credible for and she did say that but she also said was the interest was the term because you can you can look through this you have homes interest but we don't see any interest in there more importantly and she indicated this is a five year six  said we need this money we need a loan and so your answer you're asking you know good questions what was the term at that point was basically we're going to run out of payroll we're at our deaths door sort of speak we need this loan as far as additional terms that the interest the fault rate the charity date that was something that they didn't talk about because of this relationship between the parties so to say that yet was this a loan that any of us in this room would have documented the way it was undocumented sort of speak no but it was still a loan and his declaration said it was a loan the only contrary evidence is of patrick which is obviously going to be the contrary nor was it alone yet when we get to the motion for reconsideration where we have a book in the debtors books and records as a note payable and we have the director of finance doing thompson saying it was intended to be alone we never get our day in court on that that was just completely shut down and as far as the the factors under what is i j of the bankruptcy code which allows the court to allow or to reconsider a disallowed earn allowed claim and in also rule three thousand and eight dollars of the federal bankruptcy procedure which does a same thing in those that code section and that rules are that rule three thousand and eight or in there we believe and i think the cases say for this exact situation this happened on a rather quick track to have a claim that was filed initially when was that october of nine i think when the involuntary was filed and then a nother  of claim was fall the month or two after that and they had this claim sit there on the record on the books sort of speaker on the docket of the case for nine years and then on the short track let's object to this claim i'm on vacation the principles that at baskin group they're out that that have any knowledge of this loan from nine years earlier and then we basically get shut out we believe that about four minutes yes thank you we believe that the factors under five thousand are sitting five hundred and two j along with three thousand and eight the expediency in which we did this and most importantly that the thing the word that they don't want to hear ever is we believe that the testimony that the aptly douglas patrick provided was perjured testimony he says there's no loan t sean o'keefe appearing on behalf of douglas patrick me piece of court much of what you have heard today was not in the record and it's exactly what was posed endeavored to do before judge smith and this is not a case where he wasn't afforded sufficient time i afforded him that time he aust me for an extension i granted him an extension he never i asked for another extension which is what judge smith noted on the record now the standard here is an abuse of discretion so the question is was the court's ruling illogical implausible or with out support in the record this is what the record stated there was no evidence establishing the existence of a loan and no come on we do have a a statement on a declaration that says that a loan was requests and we love you know my company loan mr kim does say they loaned him everything as a full stop that's the totality of his declaration other then he proposed to characterize what's in those writings now if you look at the penultimate e mail all that's happening is one bascom employee is directing the account their account to book an entry that's it but still doesn't overcome the statement that on this eleven june th two thousand and eight the requests a commercial services upon lack of the essential elements of a contract for such fish and to establish the formation of a loan absolutely that was that it was a complete failure proof the the defect wasn't just in this is the record at the point my client testified we are in the business of performing renovation services we get paid a fee for our services explained that they had work for them on sixty dollars projects on time on budget he also explained the relationship that they perform the services for the lower level elo seas which were managed by bascomb my client as a service provider would never borrow money to perform services on their projects that simply would never happen and that was one of the eight hundred that was the eight hundred pound gorilla in the room why why would my client borrow two million bucks to fix your projects why would they ever do that well they're saying because you need to make payroll you want it that was in the record and in fact that's why mr mr patrick testified there was no longer there was absolutely no on and that's why he put in there there were sixty projects that they did on time on budget these people didn't make a mistake he also explained in there that the reason why this arose in all of this is my con is testimony is the lenders failed to fund one of their lenders was lehman brothers so when they failed to fund it there was a deficit all of these people who were performing services on a contract including my client that information was not in the record to be fair either correct it was in his st and nd aeration a reference that their lenders were not funding so they had a choice allow their properties to be foreclosed on or to advance through a lockbox money to pay the debts of their entities my clients would never have borrowed money to fix their entities everything else in this case is just mr polis testifying and i would also note that in this entire litigation my client has been forced to fight on one leg with an arm tied behind his his back i sent out a request for production of immediately after i objected in may the hearing was in july they refused to produce anything nothing under rule thirty seven judge smidge could have stricken their pleading and all the findings from my client this court has a right to affirm on any basis had they produced those records they would have shown what the inference is clearly indicate which is they booked the receivable for the account because at that point in time they didn't know what each l l c would draw in the their work tax returns would also show that he didn't book a two million dollars home to my client then write it off it was booked each member so this situation developed because they couldn't pay me it was two thousand and eight the world was coming down they couldn't pace of they open up an account or them wrote a check out of their pocket in my client was just the dispersement agent this case comes down to the evidence in the evidence is in entry in a in an e mail from one employee to another it says book at t commercial services building inc lockbox they took money from one of their accounts and moved it to another town and then they simply said book it for our internal record keeping purposes as a receivable there was no loan in the us and the ascent issue you can't say to someone in this case there was no request for a cent there was no request for a loan i was mr thompson on the  on the emails your honor we were going to serve and did serve as the dispersing agent with basically what they would do is they loan the money we would submit to them a series of bills they would look at them and say paid these from the lockbox account we would then pay those some contractors who were doing work on their projects that was all his his role was simply a screener on the account he had no power to approve a loan this there was only two offices in this company was to fill back in mr patrick neither approved the loan they also there was no loan requested mr kim states c s b i requested a loan that's hearsay i moved to strike that in my evidentiary objections he doesn't say who requested it he doesn't say why they requested it he doesn't say what for he's very careful saying they request a loan full stop now look at these e mails the reason why is because he wasn't telling the truth and was paid an incredible so what judge smith was faced with was ok you have to sophisticated parties you're making a two million dollars loan you don't ask for a cent you don't set out the terms you don't have any writing whatsoever nothing nothing at all you don't have you o produce your county records you won't produce your tax returns you won't produce anything so they came to court and said here's how this hearing is going to happen we're going to give four in males those we designate and i asked for the i in my r f p they didn't produce anything they came to the hearing in judgment this is a pate lee incredible showing for what you're seeking judge smith gave them every latitude in letting their evidence in the court remember if someone refuses to produce and comes to trial typically you strike their answer you strike their evidence and all of my my evidence is admitted my findings are deemed mid judgment didn't do that that was within the realm of her rights under thirty seven c which adopts thirty seven b remedies but she didn't do that she listen to them but this court can say no she had the power to strike all of your evidence that point in time it was incredible evidence under the abuse of discretion standard we're going to affirm this ruling i would simply close by saying had they produced had they done and given me the opportunity to try the entirety of the case which is all i wanted to do we wouldn't have had this circumstance but this is a one billion dollars outfit represented by a competent lawyer who refused to produce anything i had an extensive meet and confer with mr polis and he said i'm producing nothing why because it's irrelevant yet ten days after the hearing five hundred pages of documents show up which magically are relevant and once again he gets to select just those documents in his record that he intends to present to the court so in both hearings i have to fight on one leg with one arm behind my back against a massive entity on behalf of an individual the system doesn't work that way if there's ever a case where the court would say no thank you your orders as far as the production of documents at the time that this is i believe in mid june after having come back from month vacation at the time we were asked for the documents we had what we had we didn't have much again i was out of the loop and we explained that our motion for reconsideration but to borrow a line from jos lafferty that's a huge problem i mean why why does that matter you were under an obligation your client was under an obligation to produce these documents it was given leave for additional time and it just didn't do it that's the whole was yeah yeah but it doesn't mean we don't you have to get to to the limit any additional documents because why wasn't joe smith entitled to rule based on what she had before  that's my point your honor when we said that she ruled just on basically dueling declarations my guy says there's a loan they say there's no loan ok but she was saying and i guess i'll shut up after school monopolizing but ok i'm the one your guy your guy says is a loan but there are no terms as to when how it's going to get paid into a lesser extent interest into a big extent a cent because you're saying this is a loan based upon these e mails that we copied somebody in that company you say that's the controller that's disputed but there's nothing from that person or that entity coming back and says we agree one thousand six hundred and twenty four the civil code and twenty four does create the assent when they don't object within i think it's three to five business days there was no objection from somebody from bascom from the debtor commercial services said oh no no no that email from july th we know we don't i wasn't alone don't book that is a long book that is something else nothing was said as far as the someone again you know to wayne was duane thompson who sees all those emails that says book this as a loan payable from our long receival from the debt or you know it cetera et cetera milton daly the accountant put this as a loan receivable to bascom loan payable from from the debtor no time did they say during that time period oh no no you must characterize that that's not supposed to be alone so the