the defendants below where we lost on summary judgment benefit of going last is that i was able to see how active the bench was and cross off about half my outline as the court knows we're here today because in our view regents bank discriminated against mrs phoenix for breaching its lot agreements and implied covenant good faith and fair dealing with them because she was married to mr phoenix proper debtors for that amount right correct your honor we did bring it up in the attorney's fees phase of the case to the district court and we did not bring a rule fifty nine motion because with all that have we could have all of i don't know why you didn't the district court would have clearly corrected it wouldn't well and i'd like to respond to that your honor the first reason is i don't really matter focus needs to be fixed but correct and one reason we didn't is that i want to show this panel but it's  say start time babe i say saying that somehow this prejudices our view of how the district court handled the rest of the well it is the tip of the iceberg your honor and it's a tip of a big iceberg and it helps explain other things the fact that the court granted summary judgment saying that we didn't we didn't dispute things that we would dispute it granted a second summary judgment sucks second summary judgment motion response to our motions going to the admissions in the pleadings which is an issue on appeal here when the operative counterclaim was allowed to be filed by the district judge the bank filed an answer to the counter claim of the allegations ford forty five through seventy eight of the allegations were not answered now the earlier plea answer did respond to those allegations right well no allegations fifty five three sixty three were never responded to in any of the prior answers the counter clime except a lot of those are i mean if you actually look at them they're somewhat conclusory and conclusory allegations don't really hold any water some of them or about some of them or are factual issues and if i could just give an example one of them that was not responded to had to do with an issue that went right to the heart of the case and it was this issue of the alleges this crossed a fall and it wasn't responded to and wasn't denied after discovery is closed this is the response of the the amended counter climb and that didn't surprise us because in the evidence we cited in the brief their own witnesses said well you know actually there is no cross default language in the loan documents so it didn't surprise us that he didn't bother to deny that allegation because that was a key factual issue in the case that they later admitted to and what is odd in terms of an error of the district court that needs to be reversed is the district court in a summary judgment order said the fed is do not dispute that they were in default under the relevant notes and guarantees well yes we did we said all along in response to summary judgment by citing this kind of testimony that their own people said that the false they alleged fact not really false that first of all letter were  know the words they were defaults but they're the kind of things that would have been overlooked in the past well not even just that they said that the there was across the hall to parallel the partners alone but then there are a lot of us are officers said with the loan documents do not have cos language therefore in fact it was not in the fault the other default was you're supposed to give us financial information that and then they admitted well we had that information so that the faults that they base their acceleration on what about our what about the tax payment ok so there are several reasons why the tax issue was not a real default one was that first acceleration letter was never diesel or added so we've got at least fact issues we're going to foreclosing cellar alone entire balance so why dump another twenty five thousand dollars into the property because if you think that you have to he have a good legal case to be able to demonstrate factually that there and correct you why wouldn't you want to preserve the property and not create additional problems so i guess the third reason why the property tax issue isn't a real issue under florida law unlike alabama law regents is headquartered there are no real penalties for not paying the property by a lien is a real issue maybe an issue is a penalty so the language alone documents that because it's as an event a default is when there are penalties assessed for property taxes seems to me that the argument you been making about the taxes not so much a fact an argument that they're disputed she's a fact but you're saying that as a matter of law you were relieved from the obligation to pay the taxes when they gave their says a and the next party says b and we have to resolve who's telling the truth i don't see where there disputed issues of fact in this case it appears to me that all the facts are undisputed the only question is the did the allegations of the factual allegations letters that we were on the fault that we submit contrary evidence on those issues to create a suspicious fact as to whether we were in the fall that the time justifying their acceleration two are the ones that the judgment was entered against we've never taken the position in execution that we were going to go after at least at phoenix are perry winkle on counts one in two with respect to the legal outsource oblate you know sam an objection to  basic commercial lending relationship involving two loans there's the legal outsourcing loan which is secured by the funked law firms assets and then there's the perry winkle loan just as secured b strip center this case is interesting in that counsel of record is a guarantor on both loans principal both corporate or he closed the perry winkle  loan he submitted the applications for the loans to regions you know i thought this case was interesting because it brings up an e c l a claim that the supreme court split evenly on your honor i suspected that might have been something that was of interest to the court however i don't think that it should be decided today on this case because well how could we avoid deciding that issue well your hon if you look at the counter claim that was brought before the district court and what has been argued here in the briefs is completely different factual situation so  they haven't even advanced the right argument and our position your honor further well maybe i misunderstood i thought that their argument depends in part on whether guarantors are covered under the u c l a do you agree with that they they do talk about that but do you agree that their argument depends in part on that no your honor we think that judge magnus and when he made his ruling he found that there was no evidence of discrimination so he although he mentioned hawkins he never even had to get there as to whether or not a guarantor was an applicant because he found no evidence of discrimination so he never had with the perry winkle loan so when the perry link winkel application was presented to regions depending on which allegation of the defendant's counterclaim you look at one paragraph or one allegation says chuck phoenix and perry winkle applied another one says lisa phoenix and perry winkle applied so if you read them together i guess they both applied and you can't discriminate when they're both applying and the way the package was presented to regions was approved and the credit was extended there's no adverse action there's no discrimination but i think like judge cryer's asking is he saying the only way that we wouldn't get to whether guarantors are covered under the c l a way is if we said we need not decide whether guarantors are covered under u c l a we can assume without deciding that they are because even if they are there was there were no adequate allegations of discrimination as i don't mean to that's right yes you are of course you can decide and take that position one way or another but i have to get to that it would have to get to that issue if we were at their brief they're arguing that there was discrimination because when the legal outsourced loan mature and regions banks said we can't extend the maturity on this because legal outsources defunct it's not credit worthy you need to provide an additional source of repayment collateral something to that effect they're saying in their brief which they never raised in front of judge magnus and that that is the lation so they can't do that they can't raise something for the first time in their briefs here that they never even raised in front of the lower court and we think that that your case the access case is point there are issues not raised in the district court should not be raised for the first allegations and we would contend that we did it maybe if we could do it over again maybe we would have alleged them all in one document or pleading for the court i understood your honor but to the extent they're alleging that we made judicial missions because we didn't answer we we would submit to your honor that we did in fact and i painstakingly went through every count and matched it up granted the numbers of the answer might not match the allegations but it matches forbade the language that was asserted so with respect to the next issue then it was whether or not there's you know material issues of fact  we don't believe that just because there's twenty pinpoint sites that not that necessarily are two hundred sarin a twenty two hundred pinpoint sites that that necessarily means there's a genuine  that the district court found that the defendants did not dispute the defaults under the notes and guarantees and we believe that is correct finding but the defendants have  they invited us to go through a voluminous record haystack of pleadings looking for needles that may or may not create a genuine issue of fact we don't believe it's here we don't believe that it's this court the district court's regions burden to find that needle there are no disputed issues that i've even heard today that have any genuine merit that would be reason to overturn the summary that mr phoenix and the defendants moved for authority to file a new initial brief and that was denied regions answered i responded to that initial brief and then when the reply brief came in interesting lee a lot of the pages and paragraphs that were in the proposed initial brief surfaced in the reply brief so we think that they have attempted to raise new arguments via the reply brief that were not raised and should not be considered because we haven't even had an opportunity to address them and briefing and that's not the purpose of the testimony that the bank only requires business owners to sign guarantees not business owners so we believe that we tie that together with asking  that may be their policy but if in fact they never applied it it does that type of evidence i did not believe that was required but on the guarantor issue i would just state that there is a circuit split that i believe eleventh circuit should weigh in on the supreme court you might not like you know the that requisite agency has expanded the definition of a guarantor under the authority granted to it by congress that this was not just a statute that a rogue agency went out and and expanded it went through the the rulemaking procedures pursuant to statutory authority to set these regulations may contain but are not limited to such classifications difference of differentiation or other provision that may provide for such adjustments and exceptions for any class of transactions that's fifteen u s c sixty ninety one b that we cited so a pretty broad discretion given the agency on the same in terms of the facts in dispute i just want to kind of list some of the facts that we started our brief where we did we did provide disputed facts on the default issues we saw the deposition testimony that  celeration in a florida law everything that happened after was for the poisonous tree to borrow a metaphor from criminal law and in florida foreclosures and actual matter and we would've been entitled to a trial even a bench