construe it as either a contract or ease or whether it had an ambiguity which it opened the door to extensive evidence that issue of course is before this court as a matter of law and  to be construed against her as the director and her answer she admitted that the contract was poorly drafted for the written and we start with the very title of the document itself says residential contract for deed slash lease and in the contract itself includes a lot of terms which i think belied any possibility that it was in fact just a lease with an option to purchase refers to installment payments or refers to a down payment the remaining balance of seventy four thousand dollars it refers to refinancing refinance with outside lender if there's an outside lender isn't the defendant inside lender but operation of law or construction it refers to interest on the princip balance which is the entire amount of the purchase price assaut taxes were included in life installments their liability route for repairs and i think with just exudes with those terms which i think scream out and sound like an installment purchase of some kind we submit that the contract if you look at the contract itself certainly sounds and smells like a contract for deep we suggest that the court was clear that as a matter of law the contract was hopelessly in pig c even the title itself indicates that and as such the court should have considered the plaintiff's affidavit which was unrefuted in the t had prepared the contract that she had represented the contract to be in his form of purchase or contract for deed that the plaintiff had claimed a homestead in the property and had in fact been affirmed as a homestead in the bankruptcy court and as late as september of two thousand and nine when the contract was coming up for writing the party's thought it was my client thought that they were to negotiate an extension of the contract they met with a condominium board that has jurisdiction over this property and the matter was referred again saying because it's a contract for d c there is no jurisdiction here the condo association has no thanks a problem with it under its rules and regulations it's important to remember that if by just looking at within its own four corners and say that you know there's no ambiguity that it's plainly at least this was decided in summary judgment so the whole idea was it should be free from doubt in the contract itself  very hard for d where would we be construed as a contractor need my my client would have closed on the sale she tried to close it then at the purchase when it came decided by the judge it was not that she went off and purchased another piece of  tagged a whole lot of attorney's fees onto it she was unable to close on that matter she actually borrowed money from her mother who she gave a second mortgage to this property which the judge found was because it was a lease i could attach to any sort of equity and therefore had they're working on writing that kept coming back as a as a lease with option and she said that's not what i had to begin with and my bankers want except that and that's going to create problems for me to get my refinancing down the road so her would be enough to constitute an effort to exercise the option her position was it was no option to exercise she was purchasing on a contract basis the terms of the contract had right and they had actually ballooned but she had negotiated in extension of the contract and continued to make the payments and the defendant took every single payment she offered all the way through even after this litigation was filed the petition bought another home and moved out of the premises she made every installment of the contract pro if this was a contract for deed according to contract they had to be parties agreed to extend it and she thought she was getting an extension was prepared by defendant's counsel in addition she continued to make each payment under the contract which was accepted without any reservation whatsoever so the parties by their all contract until in january then i think it was when the there was finally notice given basically to put promises even after that every payment was accepted by the by september two thousand and nine then i will talk about it let's let's extend them for for months and that's good enough why you know i don't remember whether the contract had time is a essence clause in it that you know the party certainly by their contact can extended this contract and we're working on some sort of subs substitute doesn't the statute of frauds govern here where you can buy or agreement modify a written contract for  defendants from terminating her rights without going through those provisions of law and therefore when the parties just continue to perform under the old contract the contract continues now there were  of the parties from the very get go well i understand the original document was less than perfect because it's spoken terms of the lease payments continue to be made for some months thereafter really could have easily be interpreted as a lease because they don't sure now understand that you know what what was actually going on was that the the plaintiff because she was suddenly confronted with this is not what was represented this was not a contract for deed but it's now at least with an option she sought counsel and you judge i was it's was represented to me to be a chiropractor deed i've made it down payment i've been paying principal and interest and taxes and making repairs ever since but now suddenly i'm told that i didn't have what was represented to me and therefore i've got to move out and i need you court to tell me what this document is because it's clearly ambiguous even the title itself renders an ambiguity because it says kind of residential contract or lease like contract for deed slash lease and then we have all these other terms like about financing refinancing installments an interest on the whole principle not just a down payment or not just on lease payments but the principle on the balance you have seventy four thousand dollars which she paid consistently she paid real estate taxes she undertook to pay the repairs on the property that sure looks and smells like a contract for heat which is what she was represented without question from the very get go which she was getting when she was presented with the initial back assume for the moment that steered by i really don't understand the terms real estate c if this is contact or deed at the top of it and exactly the same things have occurred by september fifteenth two thousand i e there's no financing there's no closing there's no offer to here's the balance due what happened i think they think she could have given notice under the statute that i'm going to terminate your contract and then we would be able to look know whether it applies or not never came up in this case but it certainly was her position that i have purchased and therefore i have all the rights and i think in the complaint said i have all the rights of an owner and equity position she'd already had that equity approved it was below the homestead amount your fourteen thousand dollars equity there were she'd scheduled near bankruptcy and therefore but specifically yes then the question would becomes what rights is a contract purchaser have after conditions which search certainly make it sound like it is an installment purchase we should have found first of all that the document was at least and big miss and if it was ambiguous extrinsic evidence should have been considered and my client know it's presumably more than just a lease payment for  contemporary term but it works the other thirty eight so the terms are down payment the remaining balance of seventy four thousand dollars which the interest is being charged on it refers to refinance or refinance with an outside jury contract for wireless or something which of those is inconsistent with an optional purchase i think all the while not what you talk about optional purchase well not certainly consistent with a lease but the taxes was another one that was included in the monthly installments interest on the principal pounds which is referred to the entire amount that was agreed to the property would be sold for now we're paying one three starting from the get well then live alongside these other things at the minimum we have to say is that we don't know what we have is for the court to construe exam debate the idea that you have an option to buy a payments i don't think that is consistent with that or a downpayment is not consistent with a lease an option purchase would be maybe option money the balance of seventy four thousand dollars would be consistent with at least the option of purchase refinance would be consistent with an option to purchase interest on the whole principle balance would be consistent with a lease with an option to purchase all of those things we respectfully suggest that make this contract his understanding of the situation by finding him holding to the contract by looking at the four corners he could determine that the contract was unambiguous and therefore construed as a lease with an option that is a matter what else the plaintiff to do become in the court and say it's now represented to me to be something different than i understood for three years would you please tell me judge what that is and all of that i see my time is about up all of that relates whol now this one and one proceeding making inconsistent statements in the prior bankruptcy proceedings saying this is a contract i'm sorry this is a lease with after the purchase and then you have verified affidavit i'm sorry verified complaint tape no no you know this is actually a comply with the terms on the deadline that is a breach of that contract for deed and then typically what happens is the bank says a celebrated or you can cancel the more i'm sorry the conficker date what happened in this case which shows it's not a contract brigade and said her refusal or failure to purchase the property did not result in a bridge and that matter or not we couldn't force for the purchase of nor was she obligated to purchase the property all it happened is that it turned into a lease without the option any longer because the lease was a state wish so the lease continued the option was go correct and see and that's the key here when you i will courteously state that it is for that matter what because there's this convoluted theory that you know there was a homestead exemption even though i call that a contract for at least three times convoluted in unsupported legal theories that we have to actually put out citation that we actually have to define first and figure out what the argument is research and say this is what they're arguing that come up here and argue the other side and say well briefly with respect to the bankruptcy issue i think mr logan represented the servant in the bankruptcy was confused too about what he had that he cleared his schedule not only where he wants to refer to it as an executor or a contract but also as homestead state as example property having a fifteen thousand dollar exemption she claimed and owing a balance of some seventy four thousand dollars she signed lease with forty of the bankruptcy schedules she says i have real estate which i claim my fifteen thousand dollars exemption and i owe seventy four thousand dollars which is you know  no i mean i think you know he had to do with you know what he thought was best i mean i all i'm trying to say is i think he himself was confused what is this thing you know that well because the boy the point is how can you you that for the first time this was revealed to be an option with the lease after she thought it was a contract for deed when three years earlier she signs on the road for bankruptcy should say it's an option with the leas another place and it's very clear then there there could be a binding effect of it but the purpose of that is to protect the judgment of the court and if there was any judgment of any clerk it was by the panic upsy court says  submitting contrary affidavit it's different judicial proceedings in your whole argument is this isn't a lease it's a contract for the this isn't a lease with an option by acknowledge your contract for deed i grant your homestead in their property and i allow you to reaffirm that contract which you know maybe in fact contrary to a listing it under some sort of an beyond that what happened was is that i did make a counter affidavit and i find it really strange that counsel would argue that they can make an affidavit but i can't of equal dignity in the same order to have the court determined what's appropriate by way of council as opposed to isn't he right that he wouldn't be permitted to testify here this case actually going to trial because you're counsel for a party no i don't think so at all not not on this issue i mean if  they attempted to cure with three additional affidavits later on i move to strike them as being untimely and at the time the trial court was asked to do so they withdrew them so that was inappropriate for the court to consider those other affidavits all of which were necessary to reaching the chief the amount of fees which were actually by the court all i do is make my affidavit that says look i've been around it so doing this for almost forty years you know five thousand dollars for a deck action is not unreasonable two thousand dollars for any jack photograph because she has effect would be position on the property including being able to and this is the key in this case including being able to mortgage her equity and have property to her own mother that did trigger the mortgage foreclosure act because now we have a third party who is involved who has an interest in the equity that she had at the time ok thank you thank you