go right ahead good morning good morning my name is karen frost him and i represent the appellant row climber the main issue that we bring to the court today is that there is absolutely no precedent for what the district court did he the case was dismissed on the issue of an assignment and none of the cases supporting that actually do support it the reason for that is that an assignment of all right is valid and that's what you have here is you have excuse me the what was the act the assignment of all rights in what you do what you know the words what was assigned here where it was right in property as i understand it the little chosen action thing was stuck in but it was still in the property and how does that relate to what the cause of action here which was not a thing about first of all there really wasn't a right in the property because they didn't own the property they had a deed of trust in the properties but second of all this was not this was a rico claim which have is that a right in the property the initial assigns that the property but it's not a right in that property the initial assignment was and this is three thirty two was the assignment insurance interests to the property that we're all talking about the property we're talking about the property and any of the rights associated with the ownership of that property which included according to the mortgage pool case the rights to file and pursue a rico cause of action and the full assignment of that provides that you can file a rico cause of action the assignment of a right or a chose of action giving all benefit of all assumptions to the the plaintiff on a twelve b six motion gives the chose of action even if it's in the hand writing the legal effect that it should have and the legal effect is that a legal cause of action cannot be split you can't have two persons with the right time why you cited a case what cases that you which isn't the property or an interest in the property or title of the property or right of the property answering i hear two questions in that one is what shows affection means and for that i'll say shows and actions but i don't know what it shows of action in and said property is the wellpoint case i believe distinguishes between when an assignment is sufficient to assign a rico case and when it's not well point provides that when you have language that says rights title an interest that's insufficient when you have all of causes of action that is sufficient this particular assignment says any and all rights under wellpoint that sufficient property in said property that's partly leaving out it the issue here is that it doesn't just say in the property it says one have interest in the property and mr clymer and said that the misrepresentations that induced him to give the loan right the misrepresentation was we need your money to develop this property when in fact they used the three point five million dollars  collateral for a larger loan that they then converted from a construction loan into a line of credit to build out three hundred five more stores of their verizon wireless outlets it's our allegation that that was the intent from the beginning and that when they came to the climbers for this money they wanted that money to use for collateral for the loan that they then had to deal with mr cohen in alliance bank to switch it over to a line of credit transaction very properly to include a loss to the ultimate property is that how you get to this assignment being an assignment of recall cause of action relating to the property no the legal cause of action is related to the loan on the property which relates to the property and so problem the assignment doesn't say relates to the assignment or sorry the signing doesn't say relates to the property is in the property the assignment is of all of the rights and causes of action related to the property transaction as in the property as your and in language that isn't there any of even that language that i there it says any of his or her rights come a chose of action comma title and interest in the property those are discrete and individual rights and so any of his or her rights is written as separate and distinct and i think that it's important to note at this point that if the court is finding any ambiguity or different interpretations possible in that assignment that that is a question of fact which could not have formed the basis for the twelve b six granting of the motion the court cannot as a batter of law decide which interpretation to give to a contract that i i'm not sure that i can see a way to set aside the issue of article three standing well i'm asking whether this is article two of the stand that's what i'm trying to ok all right i believe that the issue of whether there's article three standing is one that does depend on the assignment and i think that the assignment is central to this but if you look at the and i want to research a little bit of time for my reply but if you find that there was an issue with the assignment and it should be one where ben clymer should have been a party our position is that either the defendant should have had to file across complaint to add him as a party or they should have considered that their remedy was abatement if there was a second lawsuit filed and i would like to reserve the last minute of my time for rebuttal no worries we'll put a couple more minutes on the clock when you come back good morning your honour's may it please the court a fraud and cogan on behalf of lions bank now c b t i want to advise the court that there are two co defendants here i will be taking five minutes and i will reserve the rest of the time for my co defense counsel i want to start by leave answering judge question which is this is a standing issue this particular plaintiff does not case if this is standing in the jurisdictional sense then we have to decide the standing question is this but sometimes the term standing is is somewhat misused or used to deal with the question of whether this person has a cause of action not whether they have article three standing and i'm asking you what variety of standing is this or could we simply skip the the so called scandal question and get to the merits of the the answer is that this party doesn't have standing in the sense that he is not aggrieved so i think it side i believe that it is and under the law i believe the court has the issue correct under the law in order for there to be an assignment of a rico claim the rico claim has to be expressly assigned if as plaintiff's counsel claims it's ambiguous and i submit that it's not then it's not an express assignment and the assignment can't play and the argument to be a concession of ambiguity i think her argument is that it was expressly assigned the chills of action was expressly aside but if it to make us that it's a fact question so what was expressly assuming that we say this assignment  signed something what was assigned as part of this assignment it assigned a one half interest in the property and in all right title interest and whatever shows of action means in this context in said property meaning in the pimlico property is there an ambiguity from the phrase chose of action that was interlinear no it's not and the reason is because the case law learmonth for example which deals with this and gulf stream say that the way you assign a rico claim is you say i'm signing the rico claim or you say we are signing any and all claims of whatsoever kind and nature the council it's not your position that precise language has to be used right that language or language that similarly clear yes you're on your toes not the problem but it's not an express assignment is it isn't it is not th simon doesn't say that and i would say this so it's not the generality either it's that it's just about a narrow set of things having to do with interest in this property and not have the property was acquired or  d in the transaction or anything like that correct and the other problem of course is that the assignment it's an assignment of a one half interest him look oh did not consent to have decide a half interest in in a piece of property and then have the rights attendant to owning that half interest second can't be right no you have a party has the right to assign a one half interest but when that party seeks to sue others on whatever claims that party has they can't simply sue them on the one half interest they have to drawing the they'll be two last questions ok all right would it make a difference if this had said rights chose of action title interest relating to the property or transactions in connection with the property with that would that make this a different case i'm not i don't believe that that would be sufficient but that isn't the language of this claim well why wouldn't that be if that is judgment question there so why wouldn't that be sufficient coun because claims relating to the property i think is still not sufficiently express what's not specific enough to cover the underlying it's not all the transactions it's not specific enough to cover rico claim one last question is my understanding is that at some point the later finally said ok ben clymer well come into the case at what point was that was after the is sherry and i thought that it was now represented that he was going to come into the case that's not true not that i'm aware your honor no wasn't there and a motion to that effect was filed after the judgment was entered in the district your honor i i would i would have to check most i'll to the judgment i believe judge verizon's referring to but at any rate i think you've answered your question thank you thank you your honor could you put two minutes on the clock please yes no we now have the other party oh i'm sorry we're not done sorry sorry my name is robert shaughnessy i'm here this morning on behalf of the a police go wireless and kevin elder and if i if i understand the conversations zero four with respect to the assignment and let me clarify one thing there was a rule fifty eight motion that was untimely in which there was an was an assignment from a different entity other than the trust and i think that's that's important because that ambiguity was never cleared up even though the appellant had every opportunity to do so twice and so you know we before you even get to the issue of what's the extent of the assignment involved the question has to be recent responded to why is this even a valid assignment when the ass ignore is not the party to any of the underlying agreements not the contingent interest loan agreement not the promissory note not the deed of trust and it's a point in important distinction that hasn't been cleared up by the appellant so that that's something else to throw into the mix with respect to the validity of the original assignment with respect to the actual assignment language itself i agree with judge burrs on that this is an assignment of property rights but the problem also that i would like to draw the court's attention to is in the contingent interest loan agreement which and as noted in the request for judicial notice that was filed by my codefendant alliance bank and we joined in this that deed of trust which was assigned allegedly to the appellant in this case was then assigned to a third party atiya so if there are if there were ever any property rights that were the subject of the original assignment agreement those property rights are no longer with the account and there's no reason why this court needs to reverse the decision of judge phillips and return this moment rancor that her when was that the request for judicial notice was docket number twenty one now i know that i want to know when so with respect to the original assignment if there were any property interests that were conveyed in the language of specific that its interests and property rights number one there were no property rights that were conveyed other than the security interest to the dia trust in the d of trust was assigned away so we're having a discussion about property rights that even if they were the subject of the first assignment are no longer held by the appellant so i know that the court's second question to the parties was to address the issue of proximate cause i i would ask if there are any questions with respect to that issue i don't have any inside thank you counsel ok now could you put two minutes on the clock thank you there was a motion for reconsideration that was made by row climber indicating that ben climber would join the case it's quite mysterious in that that motion doesn't show up on the docket even though we have a file stamped version of it and that's one of the issues that we've raised is the disappearing motion the council says it was untimely i don't know how he proves it was or wasn't when it doesn't show up on the docket of the court in any event that in the administrative record i know that my memory fourteenth is that correct counsel was a very was it filed february fourteenth we have that in the viner we're going to pull that out so we can  confirm the date of it i also want to touch on the fact that the addition of the word l l c on the assignment doesn't convert it to something that makes the assignment other than the trust which was what assigned it a trust can sue an individual has to sue on behalf of the trust and that's what happened here the case provides that there's no term of art required in order to make an assignment the clause that says any of his slashed her rights is sufficient under all of the case law that's provided i would note that the greenlee the grain and the martin cases which is the only three cases that the court cited all of which are pretty nine hundred twenty one to dismiss action as a partial assignment none of those cases dismissed a plaintiff's cause of action on those grounds what they provided is that someone had to bring a necessary party in by a cross complaint or that the equitable court had to bring them in as well there is no precedent for finding that there's a partial assignment of a cause of action something that can't be partially assigned and then dismissing a case there's just no precedent yeah i apologize if the court requests for their briefing on the exact date of the bush to reconsider any issue i think i'm going to have it count i think we have i want to thank you for your i think you're accepted this percent of pro bono program is that right thank you for your effort if there's nothing further on this case vocal on to the next case on the calendar