appellant and the plaintiff i would like to attempt to reserve two minutes for rebuttal if i may where the debtor obtains a loan extension through fraudulent concealment and during the time of that fraudulent concealment the debtor obtains and dissipates funds in excess of the amount due to the requisite proximate cause element of syriani has been satisfied and the bankruptcy court erred in finding to the contrary section five twenty three a two way provides that a bankruptcy just charge does not discharge an individual from a debt from a dad obtained by the extension or renewal of credit to the extent it is obtained by false this case in front of us and see if we really have the case in front of us so this argument that you're making in this case was made the first time through the bankruptcy court it went up to the up and the baptists returned this case back to the bankruptcy court suggesting that you had to show if you will this connection causal connection and they are but they also said that they ruled in your favor that there were more than just one time when th when this problem or this fraud could have occurred and therefore the bankruptcy court had to look at two issues and not one then when you make the argument when it goes back to the bankruptcy court on remand you never make this argument to the bankruptcy court when you go to the bath you don't make this argument to the back  i agree that you made it to the bankruptcy court of the bappa on the first appeal and i agree that the baffert versed and came out on your favor because they gave you another reason to look at the same argument based on another thing that you might have done but i guess i'm trying to figure out why didn't she make this argument to the bankruptcy court when it was remanded you know the argument that the hear your argument about causal connection was never raced to the bankruptcy court on this on the remained and never raced to the map and i'm trying to figure out why then is it in front of me all dissipated during the time of the misrepresentation well that you had to prove a causal connection between what you suggest is your loss and whether it was really a loss that's right that's what the whole appeal is about and so i agree that was our should make that argument in front of the bankruptcy court on the remember well with all due respect i did your honor the brief that i fell before the bankruptcy court henri mand explained how there were assets that that to be fair it seems to me that you jump to the idea or to the conclusion that somehow your if you will your argument is absolutely clear but the basic argument you're making is that i don't need any causal connection between my note and the damage all i've got to do is say it's this amount for the no system out for the attorney fees is this amount for that and you've got to give it to me ok and then you suggest that that's enough but the bankruptcy court the bapak already told you that wasn't enough what you needed to do is you needed to tell how much the last was it wasn't enough to say just the note is this and the was made in the second decision the judge not to go issued but in fact the causal connection exists with regard to amounts which exceed the amount of the note the first settlement resulted in mr receiving one hundred eighteen thousand dollars that occurred after the fraudulent concealment the second settlement resulted in him receiving over one hundred forty two thousand dollars that happened after the fraudulent concealment and in addition there was another three hundred seventy thousand dollars which he removed from a joint bank account after the fraudulent concealment and those issues were very clearly argued to the bankruptcy court but it  up all the amount that you think they owe you it's a matter of after you get the total amount you think they over year did you really lose all that amount or is there in some amount you might collect and that's what the was telling you the first time when you went on appeal and then but they came out in your favor because they said you could look at another time when they might have fraudulent only taken you and so send it back and do it again but when you went to the bar down to the bankruptcy court again you still didn't try to tell us what the loss was you still didn't address the loss and when you went up to the baptists again you forgot it you didn't talk about that you you just consistently hammer on the fact it's everything that i could've lost period plus fees plus interest and that's it and they just keep telling you come on there's no was a causal connection  that so the extension of the two hundred thousand dollars loan was obtained by fraud he obtained an extension of that loan in that amount by fraud and then the question is  cause that during the time of that frog gently induced extension did i lose valuable collection remedies and if so in what amount and your honor that depends on whether you have accounts and what used position on that that i did and wasn't based on based upon the stipulation of the parties the testimony a stipulation the parties got to do with it when the parties you either have a security interest that you can enforce or you don't you don't have a just because somebody comes in afterwards and tries to say you do all the bankruptcy court found that the note was uncertain that there was an ambiguity and the bankruptcy court does not or the batf says the note is not ambiguous you presume it's ambiguous but the bankruptcy court doesn't say it's ambiguous millwood he says it's ambiguous everybody says it's not ambiguous you presume an ambiguity you never tell me why but you presume it's ambiguous but the bankruptcy court and neither  you have no security interest in settlement proceeds at all and even if there was an interest it's on perfected so i disagree and i believe that the bankruptcy court actually said in the second decision that the note was ambiguous but your honor moving forward to answer the question in addition to the stipulation of the parties the testimony of dr scotto and the testimony of dr hillsman all established that there was a pledge of the proper interpretation of the note under the bad law includes not only the whole context of the textual nature of the note but also the subsequent conduct of the parties ye i and i have cited your case for the proposition that under nevada law when the party statements as to their intention made at trial are appropriately used to determine the meaning of that contract because all of the rules of construction that the bankruptcy perfected interest which i'm not sure you do but even if you do you have any priority to this money there is there is no evidence that we would have priority to this money so therefore there is no reason to give it to you because not in the record the the the record establishes that we had remedies which if we had not been defrauded we could have exercised and those remedies those proceeds don't release them to dr scotto and we would have had that right and we were unable to exercise those rights including seeking a constructive trust as to those proceeds because d fraudulent we concealed the settlements and in both cases he settled the action before the funds were distributed so there was a gap in time during which my car had had valuable state court remedies to obtain those proceeds and my client was prevented from doing so simply because of the fraud of the debtor and your honor it's my contention that that meets the proximate cause requirement understand that you can argue because of your remedies that you have a total of a loan interest the fall the interest late charges attorneys fees that may be the volume value of your remedy but that doesn't suggest how much the value is decreased that doesn't suggest what value should be accepted from the discharge because the only value to accepted from the discharge is the difference between what you have and what what you could have had and what you have but we don't know what that is because not in the record but we do your honor because we know that the concealment lasted through the date of the bankruptcy and on the day of the bankruptcy there was nothing so your hon reality there was nothing there were no nonexempt assets he had spent all of the money it was all gone one hundred eighteen thousand one hundred forty two thousand and the three hundred seventy thousand the expiration of the extension occur well before the bankruptcy ten months before the bank or by we're gonna use that as the endpoint the last between when you could have assuming you had some security interest are you and you could have intervened in the lawsuit why wouldn't it be from that point in time when you could have exercised your remedy to when you should have which would have been the expiration of the extension because during that time the concealment the fraud continued because both parties testified to you all three parties testified that the girl was going to be repaid with the settlement and defendant continued to assert to my client the case had not yet been settled and during that so that you know that was there a further extension after the one that ended ten months before the bankruptcy there was there was not a further extension but and there i was happy the right point in time because my client was defrauded into believing that that asset still existed the schedules and statements would have also shown if within the year prior to the bankruptcy there had been a transfer to an insider affiliate or if there had been a transfer without effective the reasonable consideration and they didn't so the the record has enough to show that that dissipation occurred more than twelve months before the first bankruptcy decision that said as of march of tw eleven when the formal extension was entered into your remedies were worthless tells me that my remedies which had value in two thousand and eight at the settlement in two thousand and nine at the settlement and in two thousand and nine when the funds were withdrawn from the bank account that was dissipated by the time that extension warra because they were already gone in two thousand and eleven when we signed the written extension but the the prevailing fraud in this case your honor i  demonstrate the loss of is collection remedies to the extent he had any at any point in time in the case and i think jeff smith you've highlighted that in connection with the remain and it goes back to bankruptcy court and that the bapaume outlined what needed to be done but didn't say that the record need to be reopened and the bab said just the judge not the guy would need to revisit what had occurred and what was shown to him a trial and i think where miss caroline is is not exactly giving a clear clear view of what occurred at the at the record during the hearing is that these statements of value and evidence that she's talking about judge not gallus that were never proven there was evidence in connection with the first settlement for example that all that money went back into the litigation and so none of that money came out and as we put in our reply brief or opposition that one hundred forty eight one hundred eighteen came out went back into the litigation and turned into one hundred forty two so there was that which is the timeframe of the extension that's a real look at what were the valuable remedies that were available at that point in time and how much did they decrease there was no evidence of any decrease in value in fact the testimony that was alyssa did during  the bankruptcy was that dr scott as income was actually going up over that period of time that he was making more money that he was more readily collectable had dr has been elected in two thousand and twelve and is not matured to pursue his his remedies and to pursue is there any relevance to the point that counsel made that the concealment continued through the time when the expiration of the extension occurred i don't believe there's any evidence of that either in the record  continued in two thousand and twelve it's simply that the note maturity and payments were not made there were discussions and that the two witnesses had a different view of what occurred in that post and it assumes that they can concealment did continue to occur right through the bankruptcy would that change the analysis as the appropriate in time i don't believe it would because he still had a mature note and you had no further extensions so you didn't have another extension a obtained by fraud or some sort of misrepresentation collectible arguably in the ten months after the note richard to his bankruptcy point time but it seems to me that the reason the baps at this back for the first time was that the district court or the bankruptcy court had focused of the commitment by the dad in august of two thousand and twelve and the bab said there's not only that but also the one year extension agreement would be a separate fraudulent action if you will and asked them to disregard that the bankruptcy court consider them both ok so we have we talk about the one year extension there is a second alleged fraud which i understand nobody dispute reaffirmed the debt in terms of say we think i have that wrong i don't think he legally reaffirmed the debt and said i will continue he was still law legally obligated to pay at the end of mature debt there wasn't an extension if you will you're on a reaffirmation as i would think of it in the bankruptcy context that typically would happen post conference or post filing i would say with that said though certainly dr restored it was still making intermittent payments after the note mature in tw god which the bappa think agreed with the second time on appeal found that one that there wasn't a pledge of the settlement proceeds of the litigation there was a pledge of doctors gotos dental practice he owned dental building also the property in his dental building there was testimony that i doctor has not had a second in connection with those assets it's not in the record but i but that building was foreclosed so i was how  interpretive tool to define what the note pledge agreement was i understand that analysis or i think really what judge not a gallon found was that that dr hill's win was still unsecured regardless of how you looked at what the effect of the stipulation was pre bankruptcy and so when you start to look at his valuable collection remedies or if there wasn't a value to his collection remedies the pledge that was in the stipulation didn't change the legal nature of the and the unsecured nature i should say of dr hill's wins that in th case it didn't it didn't just because the parties agreed there was a there was a promise to pay after the case settle those mullan problems to pay with it was a new agreement that the settlement proceeds had been pledged to pay the note i understood your honor i think second time around when he goes to the language on page eight and talks about what it says it is exceedingly odd to me that both parties testify that they intended to pledge to make a push and they simply to it and the judge finds well that's all right but i'm going to find differently well i think the net effect gets you to the same place your honor even if judge aka says ok i understand the pledge and why i think it gets into the same place it's still an unsecure promise if you that maybe it may be a unperfect the pledge of serving as you can see to correct your honor and i think that's exactly where we end up and i think that's really the crux of what josh nagas as is that it's an unsecured line and i think here what you have when you when you for me i sort of break this up into into categories you have a five twenty three a two way and five twenty three a to b so you have then i think the cases start to break all that down between do you have some sort of fraud and misrepresentation or writing which gets you into a to b in connection with the original that versus the cases that talk about agreements to forbear or for extensions and talk about misrepresentations that are five twenty three a today and here i want to lose touch on some of the arguments about is there a basis for this court to reconsider syriani perhaps or look at some of the others just records i don't want to make certain that we talk about that case law and i think there is no basis in front of this court to reconsider syriani i think when you look at five twenty three a two way in all the cases the talk about forbearance or agreements to extend at some point in time based on statements there has to be some showing of proximate cause and a loss of collection remedies that were valuable  here back to the top of where i started we do not have any evidence in the record of the value of the last of those collection remedies and absent that what about the prejudgment attachment possibilities well i think if the pre judgment tashan possibilities there's no evidence of the value of those still in terms of where they could have gone that what they were worth miss caroline has argued that it was worth an excess of of hundred and sixty thousand dollars but the record talked about how the two different settlements one went back and there's no evidence that money that was involved in the first arena settlement didn't go back in to fund the litigation going forward for experts and other expenses and costs so around they have a prior and i think that's another hurdle but the case was we have to go down the rabbit hole and try to decide what could you have done what was possible but just look at the value of those potential remedies and that's one of the issues that if we talk about what was the value of the defrauded i understand that but he certainly could have filed a notice of his leaner interest in the settle process at any point in time which would have been the prudent thing to do at the outset of the litigation would have been to say i have an interest in the outcome here and tell all the parties he never he required to do that in the context of fraud i mean does he does he have to take all of these steps or do we just look at what did he lose because of the fraud had no i don't think he has to do those things but it's one of the evidence part of the lack of evidence that that potential remedy had any value and i think therein lies the issue of what we're talking about that there isn't evidence of what exactly the timing was of all these monies where they went and then the remedies that were available what the value of them was at the time much less what the value was ex wife that there was over three hundred thousand dollars in a bank account that had been dissipated but there's no evidence of time there's no subpoena of those bank records none of those things were were sought after international producing what was available one point time and where carline like a vehicle in an animal your honour's and i just wanted to make the point very briefly that under the act you decision this court has held that the non disclosure material fact in the face of a do just disclose has been held to establish the requisite reliance and causation for actual fraud under the bankruptcy code it's consistent with the non disclosure cases that that and limited time period i wanted to get back to your idea that the bankruptcy court did not find the contract to be ambiguous the court made that finding including and supposing thre testified to by both parties and stipulated by the parties to be a grant of that settlement proceeds to collateralize the loan and your honor i see that i am out of time i very