going to spend my time on the contract itself insofar as that goes within the excerpt of record there is really five pages we need to look at the next the contract itself which is on page eighty four contract was prepared by the defendant of the telly the contracts family trust had nothing to do with its preparation it was handed to them they signed it i believe october of one thousand nine hundred two but it wasn't actually given to them for a year and a half later march of ninety four with a letter that said the thirty day escrow will be open you know why that's significant is the contract itself if we look at it to the property says within thirty days after acceptance of the contract or removal of the contingency and i want to call the court's attention to that because there was a contingency and much has been made about the thirty days but there's been a little sad about the contingency and that contingency is found let's call it page sixty six which is the face of the contract in that contingency is found in paragraph s approve a credit sale for this property now read together we have to keep going back and forth read together with paragraph be on page sixty nine it says when the credit sale is approved then that and then the purchaser will have thirty days there's nothing in the record that ever states that the sale was  the well but there was a lot of things that were produced that summary judgment in that again is addressed in the brief that there were a number of documents during the four year period that were left completely out of that right i guess i look at it a little broadly i believe the fact that all of the duty rested with the with the defendant on this part to create the notes to create the deeds of trust to give that demand to the title compan back to the state just before breakfast with a check and what was the government under the contract had to put before the district court to shift the burden on to the perth family for us hearsay testimony there that you would still win so can you clarify where i'm missing the boat on this for that duty to iraq's to produce the thirty five thousand dollar check under this contract the seller have to notify the partner that they had approved the credit sale and it states right in the language of the contract they say this is on page halfway down in the paragraph that there's a sense of political to credit sales of loans by f e m a j only that next paragraph hugh for the credit still to come into effect it's like any other banking transaction i'm walking into a bank asking for a loan i'm going to give them my financials that's what this says the purchaser shall submit financial information upon request of the government within thirty days of such request there's nothing in the record that shows that the government ever asked for these financials yeah i'll get to that issue on a waiver if i if i may just finish on this point the the issue here is that you kill the government exercised its duty to ask for these financials and therefore approve the credit sale by the language of contract and notify contrary family trust that the credit sale had been approved then interest family trust have no duty then to close and ask what are we closing we haven't approved the credit yes we have a letter from mr macintyre that says if you're still interested these are the rates and terms he doesn't ask for the financials on the other issue which is that was an interesting issue we have a period of about three months after this first letter from the defendant pelley which says thirty day escrow we have letters that go back and forth asking for extensions now mr mcintyre's declaration sense as to the last request for extension he noted i his file that he had approved that whatever it was another two week extension maybe six extensions that he had approved yet another extension but that was never can fade if you contrary family trust james mcintyre he could have called his state office who were intimately involved in this there's various letters where he's doing that asking assistance from the state office there's a letter in one thousand nine hundred six from his state office telling him what their concerns are over this transaction but there's nothing as to who he communicated that to there's no evidence that he ever communicated it to contrast family trust with so is the record then that there in fact was a request for information and then he got forty six allowing declarations and is a good example of why you need to be cautious when you do that it didn't conform but oh on the waiver issue california state law is  real clear that once this waiver of this thirty day time period after jan then the government in this case the federal defendant the seller since they were the last one is to give or not give anything that would lead to any clear direction of what was happening with the sale they had a duty then to make a demand to contrary to let's get this close now it's been long enough we've had enough extensions enough time has gone past and they probably should have also asked for the financials at that point but the record is clear that they never did i see i'm running out of time and i was like  two things to effectuate completion of this transaction one is to submit what they call a demand and the other is well the other is not so much in relation to my client but they say they submitted a check which was never  credited to them or returned or or whatever and any rate that was their indication that they were prepared to proceed and to perform and that therefore any failure to consummate the trunk transaction was somehow the fault of my client  we've argued and we continue to argue that they're attempting to create a tribal issue a fact in retrospect because there's no contemporaneous documentation of any sort indicating that the chicago title company yes go company or the trust itself or anyone else in writing ever requested that a demand be placed by my client into escrow both ok just i'm having a l sorting there is a contractor sort of lays out the ground ok i'm with council is arguing that if you look at the contract by the standards argument the ball was under the contract in your court as seller so if there's hear did not take the staff or doesn't at least doesn't have documented proof of it that it triggered the duty on the suspect purchaser to do what it needed apparently  condition precedent before which the thirty day escrow would not run however there was no financing to approve and the reason that there was no financing to approve is a matter of record the reattachment of liens problem prevented the trust put they had to they had to proceed to get the financing in order to present a package that could be approved or disapproved of it to to take counsel's argument face value if they never did anything in terms of prick proposing a financing package  the contract would be forever because therefore the government would have never approved or disapproved the financing and therefore the thirty days would never run and in fact that's apparently what they're arguing now  but i think it's interesting to note that this is the first time that i'm aware that they've argued this requirement it's always a requirement i have my client and it's always a core quire meant that's never been talked about before and certainly that no contemporaneous documents exist regarding  that is the case of course with the demand counsel indicated there's no evidence that well it was essentially it a bit of proving a negative argument but counsel indicated that there was no evidence  that we failed to to receive a demand for that that we have i can't remember how he put it but in any rate the declaration of mr macintyre in this case at page at page thirty five in the excerpts of record is evidence and it says i never received we never received any request that a demand be placed in escrow that is evidence it stands uncontrover exactly there was a telephone call and so forth that the issue is never raised again by the talent in other words the appellate never says oh by the way why did you give me that two week continuance they weren't shy about complaining when we didn't do things that they thought we should be doing if you look at the correspondence here if they had sent us or any fact there were consequences for our failure to give a continuance and i believe it was that they would proceed to appeal with further litigation and so forth which they didn't do another indication that that in fact he continuance was granted but nothing happened they said they needed the continuance not for any reason of allowing us to approve  financing or anything like that they said they needed a continuance to solve a problem that they were having that they were having that was preventing this from from being consummated and that was this reattachment of liens problem they said chicago title is saying we've got this problem with reattachment of means that i don't understand their position but give us two weeks we think we can get it worked out a well the two weeks were given nothing more was heard from them about this problem  from for for all purpose intents and purposes for years i believe for about four years so what was the government going to mean for when to the back of the well because this particular agency i believe is  pretty busy with transactions like this and indeed with other transactions involving this particular party but i take it the ball was left in the appellants court they said we've got a problem with  the last the macintyre here and the standard is that we've got this issue with three attachments we need a couple of weeks and then it goes off his screen for how many years four years apparently ok four years and that and so what instead of when you file comes back up on the corner of whatever they're back on the screen whatever the government doesn't call them and say what's going have ended one is after the expressed expressly requested fourteen day continuance expired and the other would be a by operation of law that in any contract or the sale of real property in reasonable time to complete sale would be implied knew that they were going to be in the fall your honor the the appellant in this case wished to purchase property from an inventory of presumably many such properties they were given an opportunity and they were given that opportunity in writing by virtue of a contract you can lead a horse to water so to speak we attempted to sue we told look it's been a while i mean if what you say happened later actually happened earlier in other words we said that the contract was signed in ninety two and ninety four consistent with what the court would have expected us to do we said look thirty days come on let's do it and there were  and excuse me and they were engaged yes they did and that they then started complaining about the terms of the contract but when they got over that they said ok we'll do it apparently and then a problem that they had that we couldn't influence which was the reattachment of wein's by a prior first in priority lender came up they were unable per everything we can see in the correspondence to resolve that problem and that problem was not going to go away so what's your answer to the question under the contract did or did you not at that point have any obligations before the clearing the contract expired that the government any obligation to go back to the fire and i don't believe so your honor i think that this contract expired in a number itself and its effects it expired after a fairly lengthy period of time and a course of conduct between these parties that indicated  definitively in the end i would suggest that the plaintiff was unable to perform and that was something that we couldn't control in other words if they did they never let me for example you talk about the four year gap whatever if it is that some point during that time they had come back and said well why don't you only give this to respect that it's been a year but we've got this resolved now and then we set off to make ok canceling now would have had a much different scenario than what we have now what we have now is never at any point included this date any indication that they were able to perform this contract thank you this property i say met with them regularly on this piece of property they asked contrary for help with the victim one of the clients give me tenets that was on that property so there wasn't a lack of communication  contract itself says the government's going to provide the financing as far as that goes we're back to this question of the thirty five thousand dollars check because that would have been the duty of contrary us would be to tender that check and the credit sale would have been closed but we know and by the time the government had given contrary to this contract about eighteen months after the end signed it years after they'd acquired the property it simply is a non sequitur it doesn't matter because the year have run it was the title