the situation the front stuff could appreciate he acted as the independent broker in a transaction involving the purchase and sale of spare ribs he stood to gain twelve thousand dollars commission from the transaction instead here today holding a one point two five million dollars default judgment that was entered against him at issue here is his rule sixty p motion to set aside that verdict and fortunately there are a number of reasons both of the law and the record compel that that judgment be set aside to allow him to have his day in client has some populum sint term so he doesn't provide any justification to the district court first delay in filing his sixty motion and so why would it be an abuse of discretion for denying that his son timely he talked about his divorce and his bankruptcy is it's a reason for his failure to respond to a complaint but not as an excuse for filing of a sixty motion well your honor first there is no pre determined time for filing the six to be motion it only says it needs to be within a reasonable time for certain of the subsections that he is here is alleged here proffer here there's divorce he said that he could not afford an attorney and he had to go out and educate himself as to the relevant law and merits do you think we can it do you think we can imply from this record that the judge didn't believe him that he didn't know about the case i believe that the judge did just simply i mean if he didn't there's not a factual finding your line that you knew about it and all of that and you're lying but it certainly seems to imply a plea the judge didn't believe him because there's a there's a whole questions about this e mail account so you know you would check it occasionally or what you know and then suddenly he he pops up at at some point and some of the ad you know there there's a whole thing about where they liked and then they published in the e mail account apparently was one that he still use funny only selectively do you think we can apply the that he used that to send the e mail but he didn't actually read or even read most of the z mails or something like that well i guess you know this issue the issue of their e mails comes up in the part that deals with the culpable conduct and the default and that's an important you know it's an important part of this basis here and he did provide an explanation he said that he was afraid of viruses so we didn't read e mails that he didn't think were intended for him but he was using only aware of the dispute but didn't feel  is that a finding we can set aside well because the district court's looking at the people listening to these explanations and yet he made it but if you don't believe him and you think that the person is a liar how do you how do we overwrite that well first of all he didn't specifically make the findings my assumption and that's what was going on in his minds second of all that that took place in the context of a prior proceeding not in the context of the sixty people which was rejected only on the basis of being on time so i don't think that whatever the district court said in that earlier proceeding unnecessarily by here and in the submissions for this this proceeding he provided a reasonable explanation that reason alexa laysan at leas calls into question very infrequently and that the rule sixty standard should be liberal or you apply i believe this very much meets that standard particularly with culpable conduct well you know states he was not the party to the contract that contract was between lincoln and knowing he was merely the bro that's a complete defense to the breach of contract claims and the damage that will ward it were stem from the breach of any of the underlying motion papers nor was it made a part of the appellate record now with respect to the fraud and the misrepresentation claims that they're alleging that lead to refers to as answering very in his declaration regarding the default judgment they simply referred back to cursory allegations in the complaint so it's somewhat unfair to accuse a pro se litigant of failing to provide enough specificity in response to fraud allegations which in turn had never been fleshed out in the first place and how do you how do you prove the negative we say you say this he says he denies saying that that actually at least provide a meritorious defense to the second issues particularly when filtered through the disfavor nature of the exactly volatile you ask us to do all we are asking your honor is for the judge in the default judgment to be set aside to for this to be remanded back to the district court so that judgment was entered however that's not really the the prejudice that we should be looking at here this was a rule sixty the motion and the prejudice standard goes towards to what should be reviewed by the district court when the rule sixty emotion was brought up which was unable of two thousand and eleven only seven six or seven months after the judgment was at issue so really was was there any prejudice between in that time period and nothing has been presented lincolns papers say specific factual affidavit to be submitted it was that is undisputed on that basis alone the request by the service by publication was invalid and if it's invalid all proceedings that flow from that  invalid including the judge so we believe that no valid service has been applied the e mails that that make up a big part of the issue here as to actual notice it's important to note they didn't contain the complaint or the some it's the first one which is that the record on page thirty six simply says we would like to contact you regarding this matter the second one way or the senate direct course that occurs we would like to contact i think i honor but but again that's filtered through his reasonable explanation that he didn't think it pertained to him and he didn't read it now that may not have been a wise decision but it doesn't sound like it does not definitively prove that he was that intentionally trying to derive the judicial process or interfere with the judicial is amy indeed as soon as he learned about this she was  raised in the corps and he has tried to get back in court every day sets the district court make a specific finding of fact that he had actual notice through this e mail exchange that we're talking about but actual no they did did the district court make that factual finding i believe that they did your arms but i don't when you have a factual finding like that tangled up in things like credibility it becomes close to bullet proof you know you have to show that it's clearly erroneous that's one of the highest standards that there ever is when you're talking i don't think that's true for real sixty feet ocean you know there are plenty of rules sixty decisions where the judgment was set aside even even where there are no hard test as to actual notice  on whether the judge where whether the service by publication the facts were excused but that doesn't go towards whether there are other good bases for relief here because filtering through the standard was their intention to derive the process i think there is at least a colorable question based on his explanation in his declaration that he didn't read it that the the as true by by the core and finally there is no prejudice in this context it is manifestly unfair to saddle him with a one point two five million dollar judgment simply because we can now feels it on behalf of the police making provision you can see the service was judgment where there was actual did you notice of the action that this is seem to make any sense to me if you have a requirement that's not met and then you have service that somehow after the service you completed up my briefs that are filed in the langley case the supreme california supreme court case that the court indicated in that case that a technical defect should not void a judgment and there is a good reason why i'm not talking about a well that parties sued and there's a cause of action against the party there is no dispute here there was a third party complaint that was filed against will stay we do know that there is no dispute about that there was breathing fire by both parties of the parties i guess what is contra bankruptcy or something so you're not ever going to get the money from that person and he clearly i think by anyone's standards is that that was the big fish he's the little fish  so and the palace councils claiming he's just a broker so he only would have ever gotten out of the whole thing are his you know his ten thousand dollar commission or something like that how would he ever be responsible for this full amount it is not in the record that he was only a broker and that he only received ten thousand dollars in fact he was the only person that our client dealt with in this transaction costs cost our client over a billion dollars and this was a significant meet commercial transaction that blew up as a result of a misrepresentation by mr wolf none other than mr ward so mr will steam is to one liable and for negligent misrepresentation and for fraud and contract and i think the court considered those issues and determined it made a factual determination that there is no meritorious meritorious defe there is no prejudice your answer to that is the answer to that your honor is that it has been more than four years and the evidence and witnesses with respect to the caves is gone the company that mr will stand used to work for is gone it's no longer around the only person that is around this mr goldstein and so we have no assurance that there are any documents and he witnesses i could testify and so have wall actually there are plenty of cases that say when there is a lapse of time that in itself there's a presumption that there is going to be trouble finding evidence of witnesses to set forth in the trial put what's your time where the company has gone bankrupt and is no longer you might be right but you said there are plenty of cases and i was just asking you for your best case and you don't have a while and if this is your best argument you would have your past case i  there is going to be considerable difficulty in finding evidence and witnesses to testify the trial is special when the company for which the mr wilson was working for has closed down what kind of evidence  down well i understand that nobody's arguing now but your argument that you can't get the records just because the company closed down what's the evidence about your honor respectfully i believe when the clock companies close down i think the  argued that it was just that seven month time frame we disagree with that your honor because of this right you know what your best case for your argument about the time frame because what what is before this court right now is whether the sixty be motion should be consider by district court or by this courts and so between that time period now there has been the four years away and so that delay is real it's not hypothetical and that delay has results in prejudice in terms of losing records and witnesses so it at the end of the day we're talking about mr was doing which the district court determined was culpable and in fact acted in that favor for you dating service he is a person and the only person making dealt with in this meat transaction costs our client over a million dollars in damages and so should  attachments so there's no dispute about that well whether he read them or not that would be that so judge real would have had to if he said there was actual notice you're saying he would have complied lee had to have read them so he didn't believe notice so you're saying that's implicit it would it would have had to if he had believed judge if he had believed mr wildstein he would not have ruled the way you roll this out with her saying i think if you read the transcript the judge real actually says mr  we did take the appellant into overtime did you have either don't have any additional questions all right so all right thank you both for your argument in this matter it will stand submitted