fairly simple and reflected and argued in the briefs so i will be brief essentially what it boils down to is that the trial court's findings of fact and conclusions of law are not supported by the evidence and the review standard of review is no go for the court's review of the contract and clear clearly erroneous with respect to a specific finding of fact and that finding a fact is twenty two in the judgment that was ordered paragraph twenty two that the trustee performed of of its obligations and disclosures under the contract which it  he did not specifically the vacant land purchase agreement was purchased was signed on june twenty third two thousand and fifteen prior to that and by  admission there was a motion to lift stay that was filed sometime in november of two thousand and fourteen when my client to we can see it is a sophisticated developer executed the purchase agreement on june twenty third two thousand and fifteen he had no knowledge whatsoever that the motion to live stay had been filed and consequently the property at issue was subject to foreclosure based upon tax i pay taxes you had no knowledge that there were unpaid taxes wasn't that in the brochure well he may have had knowledge and that evidence isn't in the record that was argued by the  what significant and the distinction between that is the fact that there was that while there may be unpaid taxes there was no knowledge of a legal proceeding so the train's coming down the tracks and  he has no knowledge of what was the what was what do you characterize as the legal proceeding a legal proceeding would be certainly a motion to live stay because it adversely what does the text of the of the  documentation and additional disclosure legal proceedings any lawsuits by or against seller threatening or affecting the property but what was the lawsuit the lawsuit it wasn't  a legal proceeding which this circuit has broadly defined proceeding has defined in various ways and i'm citing from our reply brief it's very broad ranging from the broad to the specific but an account of both a lay  legal dictionary suggests that definitions of the term fall into one of two categories overseas hopped the operative language you just read us is you have to disclose any lawsuit so a motion doesn't begin a lawsuit was there  created by sentences not by by headlines fair enough but that can be taken into consideration i would also note that in that within that vision the language is any affecting the property including which means there could be other things and i would also note that this agreement sophisticated party and i would submit to this court that you don't even have to be a sophisticated party to to know that if you can purchase something be it land or a new suit at a reduced price i would be hard pressed to find somebody that wouldn't do that had my client known they certainly would of it certainly would have purchased that property at the fire sale and i think it's notable that nowhere before the bankruptcy protection was filed had there been any attempt to foreclose on the property by the by the i think by the county i do not know your honor your statement was was when when the motion for relief was granted then or was going to be if it was granted then there would be a lawsuit i e a foreclosure well for closure but sensually right i think it's notable also that the trial court and for whatever this written notice to my client and that wasn't done so you just sort of said the when you called that it was going to be sold at a fire sale of course maybe that's what turned out we didn't know at the beginning that was going to be the case but your basic gripe is that he agreed to pay eight hundred twenty five thousand and didn't know that that he might have been able to buy it at foreclosure even though the fact that there were unpaid taxes was in the brochure wasn't it absolutely that is what is the issue in a nutshell that's it but he was deprived of that opportunity he would have sat back as any sophisticated buyer would have done and waited to see what happened and i think it's also notable that the and it's a curse to be done that somebody else could have bought it in at a fire sale plus a dollar not net what not as i mean  that's what that's what you do when you make a contract is that you solidify your right to buy it now against the possibility of what might happen down the road right i agree but i also would note for the core that the property when it was sold it the tax sale or offered at the tax sale is argued in the trial brief it wasn't even there wasn't even an offer for the amount of the taxes that  did go for you can't i well waiver it's hornbook live it waiver has to be voluntary and you have to have knowledge and and as i said before our client was kept in the dark there was no disclosure there's nowhere in the record is there any disclosure as a matter of fact to the contrary and so that's that's why the court's finding of fact is is clearly erroneous in paragraph twenty two but you can't waive something that you don't know about how is that possible it's not and so it's pretty simplistic you have to you know sure there were contingencies but how can i waive something that i don't know about that the language in the contract doesn't state and just in a wave anything that i  we know about it addresses the contingencies and one of those was to get a soil report there were certain contingencies provided for in any agreement but then he says in those e mails avoid july seventeen and twenty three that there are no more contingency well i'm glad you brought that up also because that that point is still that the buyer still didn't know that it was subject to motion to live stay at that point  recall we don't know what that was about but it was but that's where it says then you know that there is a motion to lift state is that why you say that's the that's not the latest date at which he would have known that coupled with the fact that's and the trial brief to which is part of couple of weeks after these contingency waiver of all contingency e mails are the disputed ones right about about three weeks but i and i don't want to be a dead horse but i mean initially there was a material breach of basically also you certainly never says oh my god i never heard of this you know because they're sending e mails back and forth every day and you know there's nothing of that sort right in mr mr till was in a witness at the time of trial so you know we don't know that's just as i said it's hearsay in the record so but i'm glad that you brought that up also because the trial court did not allow the appellant to develop the record in that regard any time that i attempted ask the mr stern it regarding whether he whether there had been some sort of disclosure it was met with objection after objection sustained sustained sustained sorry you said whether there were subsequent disclosures d prior or did you really mean subsequent hire whether they're looking to new disclosure at all and what he would have done had he known and not simply shut down at the time of trial he wasn't permitted to testify and in fact and in one instance the judge fight for him which is notable but i would submit to the court that the material breach you can't get beyond that in any action taken subsequent to that which would have been  to cancel the contract and they said this is even after they had breached it no no you're not there so to in order to mitigate its damages and save the property because you know at to mitigate the damages was this a legal proceeding which had to be disclosed and the text of the contract and by the way this is not something the trustee drafted it's a car form california association of realtors and it says that right on it and it was actually a low partly drafted by agents of the seller and given to the buyer to complete and again it's a car form not something that was manufactured by the trustee but many of it it specifically defines that what has to be disclosed is a lawsuit not simply any legal proceeding is a broad heading but a narrow disclosure obligation and judge jones did not find that the relief from stay in motion a proceeding his precise language with some sort of legal it was a legal proceeding it is a legal proceeding it is not a lawsuit and he did not say it was a legal proceeding he said it was a motion in a legal proceeding and there was  emotional eating there would have been the bankrupt it was a live in the bankruptcy and the bankruptcy was obviously disclosed because they were dealing with a chapter seven trustee well represented by the bankruptcy counsel meaning the buyer had bankruptcy counsel and lawsuit as synonymous those are different concepts one is more narrow the lawsuit is more narrow if they were synonymous it would have just said to score disclose all legal proceedings that's not what it said filed had there been any with their back taxes the time the bank there were back taxes at the time the petition was filed my recollection is there were back however nothing had been done to foreclose upon the properties there had not additional twenty five thousand dollars the buyer had no assurance that at a tax sale it would not have to pay the same eight hundred twenty five thousand dollars at the time of the contract mr certain each said and this is his testimony and it cited in our brief essentially i want to freeze out the other bidders i came in with the price knowing there were other bidders and there was a court and so i set a twenty five at what i thought would get me the property that was his mindset at the time he was negotiating the purchase price why would it have been any different if he had said instead of the trustee conducting the auction it's going to be the county of san bernardino still would have been an auction still would've been open to competing bidders why would his mind and that is why one of the reasons judge jones found that this was not even material and not every breach get into this but not every breach allows terminations of the contract it has got to be a material breach and judge jones found that this was not a material breach if in fact it was a breach the failure to disclose the the relief from state proceedings that was not material that might have given them a right to damages as a non material trivial  but they never served as a right to damages and in fact they never asserted until the day of trial that this had been a material breach they notice a termination was based on life safety when they found out as your hon pointed out august eighteen that there was a relief from stay most and that reference is an earlier conversation so it actually happened earlier but they never said wait a minute we were never told about this this is a material breach we are now giving you notice of terminations we reserve our rights but this is a material breach they never said it was a material breach and judge jones found it was not material for the very reason that the taxes were going to be paid out of the purchase price by going through a bankruptcy auction as opposed to a tax auction the buyer actually got a benefit because it had the right to have its due diligence expenses reimbursed which it would not have had had it gone through a tax option where it would have had to conduct either buy the property completely on exam which case it would have bought this property with a life threatening conditions on it for some unknown price and found out she had bought something that was worthless whereas going through the bankruptcy process and what you called the due diligence fees is that also referred to as the break up fee as was the break up fee the breakouts point five percent forty thousand dollars or so correct and that is common practice in bankruptcy you get what's called the stalking horse someone who has agreed to bid and make sure the truck but so that the stalking horse is not out of pocket if it turns out to not be the successful better it's entitle to the break up fee now they do have to do their due diligence before the motion but that again is common in bankruptcy for the reason that judge jones said in the record the trustee wants to go to to auction with a binding contract otherwise competing bidders are going to say well i also want a ninety day due diligence period make it one hundred eighty days in bankruptcy practice you go to sale with a binding non contingent offer and mr stern each agreed it was  so once he waived the buyer waived the further contingencies it was conclusive and if something wasn't disclosed first of all it was a not it was not a material breach when it was disclosed he never asserted that was grounds for termination and instead continued on with saying i want to proceed with the contract want to be treated under the contract i still want to be the buyer under the bankruptcy the headings in paragraph nineteen start out and you can if you look at paragraph nineteen a to it and you'll see there's a requirement to disk to disclose agricultural matters just  agricultural but the requirement if you read the text of the remainder of the sentence is not anything relating to agriculture rather it's any agricultural matter under a specific california statute and the reason i point that out is it's parallel in form with the earlier paragraph dealing with legal proceedings starts out with a broad heading they were culture narrows it dramatically in the text of what actually has to be disclosed matters arising under a piece of specific california agricultural statute not on matters of agriculture here we start with a broad definition or term legal proceedings and a narrowing provision that all you have to do is disclose lawsuits and abatement and nuisance issues and i take it you have the same argument for example number twelve earthquake damage it says major damage doesn't say any damage correct in the west i don't believe there's any just maybe it's an oddity but as i understand it this contract was signed on june twenty third almost immediately maybe the same day the trustee files a motion in bankruptcy court saying that this is  happening right yes and that's where they keep them in the dark because it mentions that there is already a motion to lift the stay was that motion is that sort of common practice that the people who just signed a contract with the bankruptcy trustee don't keep an eye on what's happening in the bankruptcy case or the bankruptcy trustee doesn't send them motions that he's just made about their now services are going to almost free they were aware of the pending motion date and in fact an earlier email to mr till which is in the record said i need to have this solved now i have a pending motion date and i have to timely file the motion and that's when they came back and said we're prepared to go forward so they knew that there was a motion they reserve top how long had the motion been filed as of june twenty three you know the san bernardino motion i believe it was i do not know i i don't know we can look it up but the the reason for the short time between when the contracts signed and when the motion was heard was because we spent all we reserve the date first and then spent the time getting all the negotiations done and came down to a short period of time saying i really need it now and i need to know it's non contingent so i can go in with a non contingent sale that's why the time between the execution and the motion is compressed but there were long negotiations prior to that and the documents  exchanged they haven't discussed no vacation very much but that was one of their issues judge jones specifically found that there was no no vacation that's a factual determination by him which would be under the clearly erroneous standard and if you look at the e mails after the terminations where i was right mr surgeon mr chill repeatedly we are standing on the contract we're giving you some additional time but we are reserving all of our rights with respect respect to the breach of contract we are simply extending the time for performance at no point did they say oh no there's been innovation we suddenly have more time to do i do diligence the continuance the period has been revived they never said that judge jones specifically found as a matter of fact review of the clearly erroneous that there was no no vacation the only modification of the contract was how long they had to perform not how long they had to do their due diligence or anything else lest the panel have some questions i've used up my argument ok thank you brief and again in our reply prefer a legal proceeding has been interpreted by this circuit very broadly and that's page ten of our reply brief to mean any legal action or process any act done by authority of a court of law step taken by either party in the legal case and it goes on and it's very broad and i think the distinction  is pretty broad and i would again point out that it says including any lawsuits so clearly that's not an exhaustive list within that provision i'd also pointing out paragraph fourteen parisian or fourteen subsequent disclosures which bolsters the appellant's argument in the event the seller prior to the close of escrow becomes aware of any adverse conditions while certainly an adverse condition would be hey it's you're going to lose this piece of property at a tax sales are going to foreclose stay is lifted materially affecting the property or any material in accuracy in disclosures they are to otherwise promptly provide