are not trying to win the case on appeal this morning we're trying to obtain the right to have a trial to see if we can win mr galea had a reasonable and plausible basis to rely on the burgess assurances of the no personal recourse premium loan financing on this transaction because burgess was a premium loan financing professional and because galia had no prior experience at all in this type of transaction felt that he looked at it and thought that it looked like a personal guarantee from the document said out on the top your honor so how is that how that's my problem with your reliance theory i understand that was the problem of the district court judge but m well actually i think there were two i'm not just if it helps you with your argument i'm not questioning the duty oh i'm questioning reliance on right ok well the district court felt that when that when that guarantee appeared in the loan documents which was inconsistent with the representations that have been relayed to mr gayley about no personal recourse financing the district court felt that  accept and which seemed to be pretty much exactly the situation that ensued that is it was there he said he understood that the reason he had to sign this was because if it turned out that he didn't renew the policy  beginning for a second year because the policy unless you had at least two years ago by which is the contestability period the policy as it has no value twenty five million dollars that's all part of the scenario of this transaction and the circumstance so what's the problem i don't think that was the circumstance or certainly i agree with that it leads into a scenario of you know there was negligence claim which the district court gave short shrift to it's possible that upon trial a jury could find that mr galea was responsible for some percentage of negligence they could find that he was  responsible up on trial but there was all his other facts and these other people involved and he had been assured that this was going to be no personal recourse so you know he just never contacted him wrong he was this person who held himself out to be an expert in this premium won't financing on very very large insurance policies he was obtained and brought into the transaction the insurance agent regalia  castro who was appointed by lincoln the actual insurer on these policies burgess was just this professional brought in to obtain the premium finance and who was he br honor hemet was an attorney who castro obtained who asked him do you know somebody that can do the premier financing on this kind of transaction and he said yes there's this guy burgess located in right that's correct so and i also i want to just divert for moment and make sure that the court may have already done this but the declaration of our standard of care expert in this case really really lays out this whole scenario of this what that declaration does for me is that's why we started at the top of the hour so to speak with duty and breach you still have to get a round you've got a causation problem a reliance problem it seems to me that that permeates all of the causes of action that i see here so i want to give you a chance to respond but i come back to this personal guarantee that this individual thought it looked like a guarantee in fact asked for legal advice about what is this thing mean i think looks like a good personal guarantee that your client can show reasonable reliance on what do you understood to be a representation visa because he's not an experienced person this is a very complex transaction your honor and he was a pretty sophisticated individual and so well he's the owner operator of a successful person tooling company and he never had any insurance he had in the past was a five hundred thousand dollars life insurance that he paid cash for the premium on that this is twenty five million one point seven million just for the first year premium again what it is he thought this guarantee did do he thought it was for what he said that he thought that it must have meant and nobody told him this specifically but he testified he thought it meant well this must mean that i he backed out he said it did not go forward and it lapsed right well so how that went by a year a year went by and then the policy last because the second year's premium wasn't paid right and that's all part of the negligence of mr burgess because he anybody was willing to loan money on the premises for a policy where the covered person had to keep paying for another for successive years because they could just two years ago by two years have to go by before but still not worth anything to the bank no it's starts to cumulate substantial value that apparently but you know that's that's the way these transactions were maybe it was a crazy period where people were doing this for it our expert explains all that in this decoration but by the time two thousand and eight rolled around you know by the way you might be different you know that happening castro were involved not there completely different qualities and characteristics of plaintiff and the circumstances of the case and whether or not the plaintiff was manifestly unreasonable in relying or not those are all inherently factual issues and here we've got mr galea yes the document  so we have this universe of people including all these intermediaries all of whom are making money on the deal a lot of it in the case of castro and that's clear was making money  it's i you know i don't think it's the my place to characterize my opinion of this whole transaction galia ends up being the victim here because he's holding the bag at the end of the day everybody else is making money burgess is making you know way well into six figures for doing minimal work placing this loan and he never talks to mr galea he only attempts to talk to him when it looks like everything's exploding and they've got to try to refinance and get the second your premium lined up and he comes out meets with them should have done that at the front end should've he has his own and i'm not going to repeat the entire record the know your client internal policy plus our expert is stating the standard of care was for mr burgess to specifically talk to mr daly and make sure he understood there was even an e mail afterwards from burgess office that they admitted that there was confusion on the transaction and they wished that they'd talk to the client so all of that scenario has to be heard in the context of a trial it's our contention and so that the jury can sort out the percentages of comparative negligence there i'm not saying i'm not necessarily saying that it's only burgess that has the negligence here there's a bunch of people at mayo negligence but a trial has to sort that out and determine what the percentage is a responsibility are for mr burgess to come in and say i have no zero responsibility and the court to uphold that at the district group i think that the panel understands his case i think that you realize that the plaintiff has a real problem with reliance and reliance ties into causation and and therefore the summary judgment was properly granted as to both the fraud claim and as to the negligence alleging burgers has the insurance agent mr castro and he has two lawyers on his team so what's happened here is that one of the lawyers contacted burgess burgess put together the papers and he e mails to documents to castro's associate i think it's mr gutierrez and to the lawyer mr hammond and somehow those papers get to mr and them bow and mr and them all reads through them sees wow there's a personal guarantee here there's a document that says personal guarantee there's a document right on the front guarantor charles the way nobody else charles and then that you look at the second paragraph it's abundantly clear from the document that it is a personal guarantee my understanding that you now insurance claim is that at least attempts to accept all of that and say but he never should have been put in a position of having it was negligence which is set him up with a loan with a personal guarantee for one year when there was no way or no plan for having him able to pay the the premium for the second year because the net result is that he was going to all that one point seven billion dollars which we know he didn't have all these years as he did so that no other words i understand the never mentions claim to be taking off in a different direction it would responsibility somehow to go because you knew that that was the ultimate person who was going to pay the loan to not set up this loan i in no way that it was certain that it was going to be outspent point seven billion dollars i think your honor argument to that would be that even the plaintiffs met in their second amendment complaint that burgess was the lender judgment so let's assume that ok as to the question of whether he represented to somebody or not to leah that there was no recourse he represented that the that he which he thought he could get a no recourse loan he won them getting a recourse loan it was obvious to everyone it was a recourse loan and that's where we're at in terms of the negligence claim as to the timing of everything i'm not so sure that our premium yes and he was an advanced age then it seems to me the only way he's not going to be left holding the bag is if he died in the first year otherwise when the second premium comes due if he can't pay it and there's no reason to think he could then the policy was going to lapse just as it did right that's good for question wasn't there somebody along the line and i think your client did collect a half a million dollar commission to have did you not have some obligation to say well you well you requested a non recourse loan that's not what this along and does this instrument make any sense for you i mean your position is he has no obligation to say anything about that is that right well i think the the record shows that this deal was put together so that the life insurance could be bought the loan would be then the loan would be obtained so there's two parts to the deal the insurance would be sold on the secondary market and that money would be used to pay off the loan and then everybody else and be so on until at least two years which makes sense i mean why would anybody but us i mean i gather i gather the two year seems to be about two things one is  e contestability part and the other is i gather the this policy was building up value meaning that it was it could be his argument earlier it just a few minutes ago was that there was no that i guess you're saying the bridges have no obligation to say does this this overall i don't use the bridge scheme because i don't mean any negative comment connotation by that but does this picture make any sense for you didn't you couldn't afford the first year premium right if he doesn't die in the first year of another premiums going to come due because there's at least an expert report in that in the in the record that suggest that he wasn't able to sell this on the secondary market so it does seem to be a cause of cards that really couldn't work for him very well so is there a question of fact there why isn't there i don't think that was negligent to not say hey this isn't going to work for you i don't believe that there's a question of fact honor our client's role was really in printed along his the deal to buy the insurance and to the set up the whole big picture deal that was not he was not part of that he was contacted after the insurance was already bought and paid for by mr hammett the plaintiff's attorney to try and set up some sort of financing so that so i know even though his position is i think we're saying the same thing and we certainly understand the facts the same way even though he understood that they originally request was non recourse and he thought he could get non recourse and he made that representation that as long as he was clear that it wasn't that he's satisfied it's his obligation he says find his obligation by make by providing the documents that were abundantly clear that it was a recourse on not only to the plaintiff but to the plaintiff's lawyer to the plaintiff's insurance agent there's there's guarantee it's a recourse loan and maybe that's what set off the bells and mr and them both head to say gee this doesn't look right and then the and they but for whatever reason they went forward and then you knowingly went forward on for a year just one year i don't know that top i had your honor i don't know unless you're any further questions thank you thank you seven million dollars no because it was the previous finance the whole thing and that when it came when it came back and said well we've got you one point seven million which will pay the first year that's what i understand bac so again burgess should have you know being the expert in this area should have as our experts said should have had in place financing to take it beyond the first year because of course note it wouldn't do michael in any good unless he died that first year that it wasn't possible right well he's he's a lot he's holding himself out to be an expert in this area in fact the fact that it touts that he can get non on his website non no personal recourse that would seem to suggest that it was reasonable for me to rely on that i just want to cover a few points you're only going time is almost  very quickly the next gents claim course i think the court knows this reliance is not an element of the claim our expert says that galea had a duty to contact me that burgess had a duty to contact and say i cannot yet do you know recourse financing the only thing available is recourse financing if he'd done that the whole transaction would have gone away he would have gotten his big commission and i think posing counsel said that wrench and mr attorney wagner he was the attorney who came in for galia after the first year that was involved in trying to refinance the whole thing and it was never successful but he was not there at the front end just want to clarify that point mr galea didn't actually have an attorney at the front end representing him hemet was the attorney brought in by castro trying to get the financing so i  had put down a first quarter premium or something like four hundred thousand dollars some deposit but assume he could get that back within a period of thirty or sixty days and cancel the whole thing but then they ended up getting the financing and he got that money back so he could have withdrawn from the whole thing gotten that initial deposit back he was never going to be able to finance twenty five million life insurance out of his pocket again the declaration of our expert goes into your next case for argument is kim versus a fearless insurance company