error in two separate respects both of which are on appeal here first the district court dismissed the complaint on a motion for judgment on the pleadings in its entirety with prejudice and second the district court suing sponsor issued ruhleben sanctions against plaintiffs trial counsel and ultimately imposed a monetary sanction in excess of thirty thousand dollars we are appealing both and we believe that there was a personal error committed in each respect but let's address that first i mean if the order that you've raised the statement what actually in their decision suggested it was it was on summary judgment if we are limiting this issue your honor strictly to the merits opinion that was issued in december i don't think that there is any dispute that the court in fact was granting a motion for judgment on the pleadings under twelve c the confusion arose in the sanctions opinion that followed nine months later when it had retired arised its earlier opinion as being granted on summary judgment and having no disputed issues of fact if in fact to the court back in september they get on the merits opinion was in fact converting it had in fact converted that motion to motion for summary judgment it did in error because it did not provide notice and did not allow us to to conduct discovery into the existence of a written agreement one principle basis on which the court dismissed the truth in lending act case was the purported absence of a written agreement between the parties the only basis for the court's conclusion as of the merits opinion was an alleged concession that plaintiff's counsel supposedly made at a telephonic conference two weeks prior the subsequently produced a transcript of that tele phonic conference shows that in fact no concession was made by plaintiff's counsel plaintiff's counsel in answering the court's question acknowledge that they did not receive any written documents from roffman other the in the two  knowledge meant that the only information we have is the only writing that we know of here are these confirmation receipts why is that in fact a concession that is the writing that we can specifically point to in which her complaint storyline the reason your honor is there is reason to believe in this case that the agreement is actually in rahman's possession the court in october before issuing its ruling ordered the parties to produce documents to each other involving the financial transactions between the parties in addition to that plaintiffs had already served document requests asking robin to produce the document here's what happened to you this is to your knowledge there was in fact a document a written acceptance offering acceptance that was sent by both parties we believe that it was orally provided over the phone and that rothman was providing diet data and information into either an agreement or or a document that could be sufficient to constitute a written and let me tell you the reasons why there are not only do we have the allegations of the complaint that there was an agreement that was reached over the telephone we also have the confirmation of a payment plan so clearly there is in existence a payment plan of some kind based on rotman's own confirmatory email but at the district court level rockman conceded that it met the general creditor sprong or the general general creditor under the under the regulations e you have to have extended credit through a written agreement at least twenty five times in the preceding year there is no reason here to believe that mr was treated any differently but for whatever reason in iraq and did not provide documents to us in response to the court order or in response to the discovery requests to be precise ruffing doesn't concede that it is a are i can't i cannot provide this court with information regarding ruffins rationale for why it was conceding what it conceded what i can state is that by conceding that it met the general creditor standard of the regulations a definition of credit or it was necessarily conceding that it had extended credit through a written agreement at least twenty five times the preceding year in this case we had mr wolfing to and his father communicating with roffman over the telephone that there was an agreement that was reached there was a down payment that was made there was banking information that was provided clearly that information and data was going into something because rauf and then generated the confirmatory emails both of the down payment did i they denied they have any such agreement i don't know that they have your honor what they say that even if you asked for it the bay of production that there would be go a written agreement that they could supply to the best of my knowledge on a date they did not a comply with the court order and they did not respond to the discovery request but there was not a a a statement saying that there was no such agreement the district court found that mr peano's declaration that was filed or in support of the motion for judgment on the pleadings was sufficient to comply with the court orders for production but there is nothing in miss peano's certification that says that no such agreement exists of any kind so there is a habit there and there they have the agree but you say that was in writing as to what the terms of the of the arrangement was your honor we believe that either there is an agreement in ruffins possession or there is documentation in data sufficient to constitute an agreement and i'd like to if i could address the issue to the court asked for the parties to address regarding the official interpretation of this agreement requirement because i think we're getting to the nub of this issue what well well you say it we are satisfied that there's nothing that they have an agreement other than what's on the record so far is it your position is even without that so called degree of it that you have enough to was before it to die you are position that you do not have enough to satisfy the truth that correct you are because the district court's only bases that the time was based on the concession that supposedly was made that in fact was not made during that conference but going beyond that and looking at ok let's ignore that issue for right now and try to figure this written agreement out there i think there's your visitors at the e mails that is sufficient to satisfy the act as it is even without would whatever they have in their their possession we believe that it is for the following policy reason the truth in lending act is a remedial consumer protection statute that imposes strict liability for failing to disclose in this case it would be very odd and certainly counter to the purposes of the statute to let a lender determine whether or not they are subject to tila by deciding when they are gathering this information from a debtor whether or not they put it into a written agreement or whether or not they tend to share that agreement with the debtor remember they actually filed a counterclaim against us in this case for the debt so there's a new group there is a there is an agreement of the parties that in fact there was a debt created the idea that a creditor think about think of a used car salesman if you go to buy a car in the guys like you know what we're not going to put anything in writing i'll just email you when your due date for your for your various payments are due you're basically allowing the fox to guard the henhouse at that point if you if they get to decide if they can insulate themselves from to liability through the simple expedient of not reducing the parties agreement to writing or not sharing that written agreement with the other party and saying up till it doesn't apply the i think the argument with the commentary is that in fact it is irrational as applied in this situation when you're having in agreement over the telephone but i don't think that this court needs to go so far as to ignore claim without prejudice and said you should proceed with that and state court but that issue was there that the deed didn't requirement for a written agreement does not appear in the statutory language at all there is a requirement for an agreement but the written the written agreement language comes in and regulations e and my point is in a situation under the set of facts where you have a creditor agreement reached over the telephone the debtor has no way and i have no idea but you could you could have a situation where the official staff interpretation of regulations even says he confirmatory letter is not enough let's assume that this panel decides we're going to apply that black letter and we're not going to question it regulations e still does not say what does constitute a written agreement even the official staff interpretation so let's just say that this e mail is not enough standing alone even if this e mail is not enough standing alone that official staff interpretation and regulations he does not state that whatever information agreements and documents are in rahman's possession were guarding the party's agreement they're not saying that that isn't enough and what we're saying is that the district court here started by saying that the appear appear to have something but then giving it to how do you know they have this because your honor in order to set up ate the payment plan you have to be importing like mr wolf into his father were speaking to someone at rothman roffman was then taken down information and data and putting it into a system that system was then taking a down payment and that system was setting up a monthly withdraw from his bank account through a debit account clearly there was information and data that was being taken from the debtor and put into a system it is our position that whatever it is often system but i can't sit here as an officer of the court and tell you because it hasn't been produced but whatever it is we think we're entitled to it and we think it may in fact constitute a written agreement even assuming that that requirement applies under the stars if you don't have this document that you're looking for i'm sorry i don't have to respond in sid we don't have this written agreement that you're asking for to the best of my knowledge your honor no because there was no response to either the court order or to the discovery and will for whatever reason the district court said that they had complied through the peano certification attached to the motion for judgment on the pleadings council even at the telephone a conference defense counsel followed up saying that's that's correct there's only an e mail and there's quote no signed agreement by the plaintiff to make payments and they've they've represented and and the response of plaintiff's counsel was silence that would seem to convey to the district court acquiescence in that status and presumably they would have learned from their client what agreements the client had seen and knowing anything about i don't think there's there is any doubt that there was no signed agreement your honor in terms of actual physical physical signature however as i understand it consent was given over the telephone in the same way that i'm doing a slash when i'm something electronically or i'm a to it to an agreement over the telephone so i agree that i don't believe that roffman has in its possession a document with mr wulf his handwritten signature but in terms of in terms of  essential elements of what would constitute a written credit agreement how much is owed how long is it oh do is there going to be is there going to be any financing charges is there going to be a late fee that there is some document that they were putting this data int for no other reason than to be generating well the e mails and everything else that in fact we hadn't got there is that they have some sort of boat inside which a document whatever arrangement they had when they spoke about this and  generated how could that satisfy the requirement of a written agreement a grave it always considered to be something got to people sit down in the media mind situation or at the very least sort of look at where you're you're  green to and i never read the whatever they put their own in in their private the memorandum bar or whatever they do it there will in fact your honor there was an agreement that was reached over the telephone regarding the terms how much was going to be put down how much per month was going to be paid but and you don't you never greta anything which they they have put down in their internal documents if there is such a thing that's correct and others assuming i mean i'm going to be really great it kind of agreement what they put  that you never saw while neither the statute nor regulations e defines what constitutes a written agreement and it's our position that the court should consider the remedial and consumer protection purposes of the statute in defining that parties have to come together have to view the written agreement in the agreed to the terms of what's in the agreement and sign your food i mean it's pretty basic contract law why would your honor i would say i would submit that the parties did that over the telephone that consent was given and that whatever documents often generated within its system may be maybe you're right maybe whatever agreements or documents were often generated in its system do not constitute a written agreement but that's certainly information that we should be entitled to obtain in discovery which the district court did not allow and the district courts whole basis on the merits was that concession that wasn't given council we are reviewing on the order of judgment on the pleadings and and the existence of an agreement is an element of the tea claim that's the responsibility of the plaintiff to adequately plead and the only things that are appearing in the complaint is in terms of pleading are the confirmatory e mails there's there's no suggestion or postulation of the existence of some other agreement and in fact i think the first time that appears is in the supplemental response on the will it will cause significantly later in the case so  mean even to the extent that that's something you know hypothesizing might exist where it's not alleged in the complaint how would that undermine in any way that i think your honor what we what was alleged  complaint was that there was an agreement for next to poor extension of credit the word written agreement i agree was not alleged in the complaint but kwame requires that there be more specific pleading than that and the only there was in it there are allegations that in agreement was reached between the parties regarding the extension of credit and then there was a reference and a quote from the two emails and i quote the allegations are that are not are not integrated you have to enter your you have to agree that you're on a district court the district court didn't didn't rely on that basis to dismiss the the complaint he relied on the concession that didn't exist but whatever he relied on what we have before us in our record is that you have a complaint are but we did we did allege that we had an agreement we made a partial payment pursuant to that agreement we went forward with the surgery pursuant to that agreement and we asked for were we asked for the choir to produce the document which they did not and i know that amount of time but the but here at there doesn't seem to be any dispute that the the writing of the of the financial policy that was assigned writing that that would not qualify as an evening in particular purposes right sure we don't believe that it would you know so why doesn't that take this situation out of the the realm of those that we would need to worry about the car sale for example where it's a traditional extension of credit i mean here it's a medical provider there's an agreement about payment for medical services and and then there's this informal agreement that's reached about how to work work out the installation of those  ents that being confirmed in a world agreement informal for work out agreement even before the debts incurred but why should why should we be concerned about that in the nature of the abuses that that you're making reference to we do not believe that the financial policy actually created any debt this is merely an acknowledgement of potential responsibility which is contingent and i'm liquidated at the time for instance if mr rahman signed this this financial policy on january twelfth and on january fourteenth of twenty sixteen decided not to go horde with the surgery couldn't one in decor and him for breaching the financial policy but that's not really true of the payment plan right it's only when with it with the understand about how much would be due that patient decides to move forward with the procedure at that point they've actually under  so what does that really distinguish it i mean is part of the issues around distinguishing right as well i think the i think the reason it distinguishes it is is even if this see if i can describe it even if this somehow can be deemed the equivalent of establishing a debt the parties renegotiated that before the debt accrued and that is the distinction between bright and this case because before the debt was actually accrued they said no no no this is how we're going to be treating the deductible for these purposes you actually had in that electronic exchange an offer from rocklin and you had you had an offer to pay the  requirement of a written contract by electronic messages going back and forth you can have an offer and acceptance that moving you don't have is a signature and we would argue your honor that again because neither the statute nor regulations e defines what constitutes a written agreement even if this court decides that a written agreement is in fact required in figuring out what is sufficient to meet that requirement the consumer and the consumer protection and remedial purposes should come into play and yes we would say that there that is sufficient and the consent is the fact that the two hundred dollars payment was made and that he went forward with the surgery to say the two hundred dollars payment was in fact the acceptance of the offer correctable because it was pay two hundred dollars now one hundred dollars a month for two hundred dollars was paid there's no dispute about that and mr washington went forward with the surgery so the offer was clearly accepted well you're still missing the signatures except correct your honor except to the extent that consent was given over the telephone and i can't as an officer of the court represent to you what roffman did with that consent weeks we check boxes all the time on the computer that supposedly is consenting to things that is the equivalent of a signature every time i do a slash asked with my name that's the equivalent of a signature so it may very well be that whatever form often was putting this data into there is an argument that that is sufficient to constitute a signature and that the overall data and document that was it was created is sufficient to meet the written agreement requirement of the statute but again we don't know that because we weren't permitted to take discovery into that issue if i may turn to that to the sanction issue there are three specific arguments that we have and i will be brief because i do understand them way past my time but there were there are constitutional due process arguments that apply to at least three of the four rationale i think as your honour's may have seen by looking through the the the record the rationale for sanctions all kind of shifted throughout the proceedings the original order that started the rule eleven that was the courts to respond to issue did not have any specific delineation of  sanction to show cause there was no particularized notice the only thing that was constant throughout was that this was a frivolous claim and that it should never been brought in the first instance and we aren't making any procedural due process with respect to that aspect of the  we don't think that it's correct substantively but we're not raising that but with respect to the issues of the bank records of the allegations of the complaint regarding withdrawals from playchess bank account and with respect to alleging that mr wolf in turn would make an adequate class representative there was no particularized notice there was no reason for going to trial counsel to understand that those issues were being considered by the by the court as a basis for sanction their declarations didn't  to but even after that hearing in the order that it issued the same day of the hearing it said the primary issue following the hearing is whether plaintiff counsel had sufficient facts to allege a written agreement so even though it had a an evidentiary hearing and admittedly there were some questions about bank records but it was more a question of when did you get him who has them what bank was it that there was not a particular notice that this was going to be an issue so even after that evidentiary hearing when you're getting an order saying this is the issue that's the primary issue there subsequent briefing of course focused on that issue and didn't address any of these other rationale that the court then utilized in its sanctions opinion many months later and you get that the court can provide or little notice of particular requires a rule to show cause with particularize notice i don't recall there being any specific requirement of that being in writing but i but i think even if you assume that oral notice is sufficient that we did not have particularized notice here even throughout the evidence you're rule eleven that's not in our briefs and frankly that's not a focus of our argument today because honestly that's not the harm that we're attempting to remediate to disappear even if the district court had issued no monetary sanctions but just some type the public admonishment or the like we would still be district judge here your honor the october twenty eighth twenty seventeen order required the parties within twenty one days to disclose documents regarding the financial transactions between rockman produced nothing but within that three week period the motion for judgment on the pleadings was filed with the certification saying that no further payments had been made plaintiff's trial counsel then consulted again with the client and said hey we're being told information from roffman that is inconsistent with what you told us we need more information and documents from you in that three week period big got additional documentation showing that in fact they thought that that the first payment that was not made was in june which was painted five they got information to understand no payments had been made so starting in february no payments had been made so by the time the production date for the financial transactions between them they produced those documents the e mails from laufman showing that there had been no withdrawals from the account they did not obtain and produce the bank records because there was no longer a dispute about that point both sides agreed that no payments had been made and they didn't feel that they needed to do that for some reason the court thought that that october order required be appropriate it would be for example that correct you're right that's that is correct your honor and i think the other thing that the court didn't fully understand and admittedly it's it gets a little convoluted in these types of financial transaction cases but the bank records and the allegations regarding withdrawals from the account had nothing to do with philip at all zero even if you excised each of the paragraphs that the that the district court discussed the would be able to bring the exact same tell a claim under the exact same facts making seeking the exact same relief and so the court did say three different times in the sanctions opinion that we are ignoring the e f t claim because as soon as they realized that in fact no payment had been a client alone without getting documentation to back up shorelines up to let me address the point roger thank you with the benefit of hindsight and certainly understanding the district court's review of the bank records issue plaintiff's counsel clearly wishes that they had secured the bank records before filing any complaint it would have been better practice to do that there's no dispute about that point period the question here is whether or not they were ethically obligated to do that and in this case they met with the client six or seven times the client said that he had entered into an agreement that payments had been made until june and he provided them with with the e mails and provided them with the june denial the june e mail that he got saying that payment had not been made there was no reason for them to to disbelieve that payments had not been made in february march or april because if the client was saying that a payment wasn't made in june and gave them an e mail for june why wouldn't he have done the same thing for february march and april so it would the benefit of hindsight clearly they would have preferred to ask to see bank records and demand to see bank records the the interesting thing though i just want to raise this issue is when in fact they've got the bank records and they actually produce the bank records to the court the bank records don't show any attempt to withdraws any month so if you actually look at the bank records it doesn't show that it doesn't show like roffman attempted withdrawal that was rejected for insufficient funds or something else it doesn't show anything so there's clearly something that happened here whether it's on rockman side to the bank side i can't tell you because again we didn't get into discovery but if you had been pulled those records it still wouldn't have shown them i guess it would have shown them a payment but it also wouldn't have shown them the payment that was rejected there's just no reference whatsoever on any of the if it be on the district judge she may disturb that good things  which tracked your factual up i agree or out of this there is not a case out there under the identical facts or are any facts there are far as i can i think that's true because in most instances i assume the lender would like to have the benefit of a written agreement so in fact they can run into court and bring a collection action if it's not pay a bouquet side had that and that makes sense because that's kind of a typical of arrangement that you would expect the lender to want they would want the benefit of a writing but in this i would certainly agree that if this court were to find that in fact the district judge did get it right and properly dismissed the case on a motion for judgment in the pleadings that it nonetheless erred by sanctioning plaintiff's counsel for even bringing the claim in the first instance when you have here a creditor arrangement that's done over the telephone the borrower has no control over what the lender is doing with the information it has no control over whether the lender is putting that information in an agreement and is sending it off to them or doing nothing with it the idea that that the lender should be able to decide whether or not they're subject to tell or not through its own decision making or its own systems i think is inappropriate and i think it's certainly there's a good faith basis for arguing that the disclosures given that this is a consumer protection remedial statute that that is that is that was entirely created for the benefit of borrowers that there's a least a good faith argument that we have that they filed a claim appropriately and that it you know even if it did not ultimately win that they certainly had a good faith basis for bringing it in in the complaint if there's no other questions i thank you for the court's indulgence the only reason there was a certification from gino pino submitted in connection with the motion is that the motion originally sought to also dismiss the electronic funds transfer count and it was only after hundred dollars a month beginning february twenty first two thousand and sixteen by credit card the plaintiff's contend that wasn't even the agreement the plaintiffs contend to be green it was that the payments were to be deducted from the plainest bank account so based on their pleadings even the e mail doesn't confirm what they say w basis for his opinion he went through a very lengthy analysis of tila regulations e the federal reserve board comments that were cited in bright vs ball so while i think he injected his personal opinion as to what he thought was the basis for the complaint he still set forth a full and complete legal analysis to justify his decision to dismiss this complaint you based on the agree that the know if if they made a payment maybe there was an agreement but there was no payments or there was no agreement subsequent to the offer because payment could be considered acceptance and that you would accept a two hundred dollars payment as a start and that there would be payments of maybe one hundred dollars a month there after he accepted well if you read the e mails that  complaint the first e mail for the two hundred dollars payment doesn't say anything about a payment plan and there was in existence on january twentieth two thousand and sixteen the agreement the financial plan agreement where the plaintiff agreed to pay his the doctor was for surgery is our position that that was a valid contract it was an executor or a contract but it was a valid contract that he breached you can satisfy the requirement of or britain agreement through an exchange of emails you cannot your the way back to one nine hundred seventy seven i mean i think the the official interpretation of regulations he couldn't be more clear a letter that merely confirms in oral agreement does not constitute a written agreement for purposes of the federal reserve board went through a situation they didn't involve a hospital involved a bank but it was almost identical in facts and there was a deficiency balance that existed there were oral discussions regarding the payment a payment schedule suggested an oral agreement for multi payments without interest is agreed to and then the bank would send a form letter and it should come book mail to the consumer and the federal res reserve board concluded that those facts don't result in a tele transaction because it's not a written agreement and as you are just calling it was in duration and exactly what they said it get i don't think it makes a difference whether it's an email or a paper i think what matters is whether there is a in actual written agreement signed by both parties because part of whether or not there's a till a transaction involves consummation consummation means that the well he does he said that if he gets his e mails and what you did with his e mails they'll be a written agreement you know and this is a consumer statute that bet that we read liberally and so forth and that doesn't mean that plaintiff castlevania statement that there is no written agreement and the case where is he misquoted what counsel saying even if he was mistaken about that the complaint still doesn't allege written agreement i agree with you that but that the theory of the plate th this case as claim a complaint i don't think you have it you don't have any e mail from the plaintiff saying i accept well we don't know what his position is if you got discovery you would see what you did with his e mails and what you did which is there was a definite arrangement made here  ago the fact of a payment can be one way to show acceptance of an agreement right and that didn't happen you couldn't we in a situation like this and considering that you're in which we live where there is a follow up  email confirmations of other kinds of agreements why shouldn't we look at this as an integrated agreement there's a financial policy that's assigned writing about that with the total amount of debt would be and then there are e mail confirmations about how the payment will be made on that and there's acceptance of that overarching agreement of the payment for that phone payment plan for the full amount  that it's accepted through through the the payment and moving forward with the procedure because that e mail doesn't say it's a confirmation it's an offer we're setting you up on a payment plan of one hundred dollars a month it doesn't co rm anything that's counsel's characterization of it in the complaint but if you read the language of the e mail that's how the e mail says it all all we need for i mean for extension of credit the term credit it can mean just  a consumer about what the terms of payment will be and in reliance on that the consumer is going forward to then incur the debt and take on that financial obligation why isn't that exactly the situation that disclosures are intended to address to ensure that a consumer is making a knowledgeable dissin informed decision before they take on the debt because there's no evidence in this case that the plaintiff agreed the offer of making payments a hundred dollars a month there's no written agreement there's no e mail from the plaintiff back saying ok that's great i'm going to start making a hundred dollar mouth payments but there's a company sion of a gratings here one signed indicating that full payment will be required before going forward and then e mails confirming that they've agreed to a different way to work out that payment rather than lump sum  ever take that e mail and going to court and sued the plaintiff on that e mail and say you were supposed to pass hundred dollars a month and you didn't what rothman's counter claim was based on most financial policy which is you were supposed to pa you're just saying there was no acceptance here i'm saying there was no acceptance in this or you have a unilateral agreement you don't have to have if somebody does something if you agree that that you know you'll do it operation for somebody that they'll make a payment plan and they make a made one hundred dollars payment that there was an agreement but i think you have no evidence of a meeting of the minds here in fact i indicated be email itself that says we're setting up this payment plan provides it's been paid by credit card every month incurring debt on the basis of repayment obligations that they're seeking on without the thing specified in writing it isn't that kind this was yes but i would submit to the court that in this case the plaintiff didn't assume that if a patient decides not to go forward with the procedure even minutes before a procedure that they've encouraged a full day to procedure no but that but it's an executive order contract so the obligation the consumer under this case i would say the dead is concert in this case when the financial policy was signed there was a debt that was incurred but wouldn't seek to collect on th dead if he didn't move forward with the procedure but it was still an executor a contract and i'm not sure i follow how there's so many any legal obligation on the part of the consumer to repay that debt until until the patient moves forward with the procedure space so it was an executor or a contract meaning that each party had obligations but if one party failed to complete their obligation that relieved the other party of their obligation in this case under the financial policy the only party who completed their obligation was rotten putting the plaintiff in breach but then that's that that's just the other side of saying when he tries to go forward with the procedure is when he took on the debt you see i disagree because there is an agreement it's if i come into a car dealership and i say i'm going to buy this car i'm going to pay you twenty thousand dollars short and we sign the agreement we still have an agreement even though i haven't paid to the order yet and dealer hasn't given me the card yet it's the same thing it's an executor or a contract but that that contract in the consummation of that agreement is required to have certain disclosures if there's going to be for example  penalties associated with withdrawing from it that's got to be spelled out right but in this case there weren't any penalties so i'm confused well we're trying to ascertain why why there what point w there really and agreement here and when was that encouraging because we have i mean the supreme court while it's indicated that we should give deference to reg's e it's also reminded us that  gender and so we have a threshold question about whether there's even ambiguity in the statute and some gap that needs to be filled in a statute that says what you need is an agreement  wasn't an exchange there was only an e mail with an offer to do it any time have a written agreement with respect in the surgery it sounds like a major operation he committed some time in agree that i'm going to go through with this and this is how much you have the charge and you're going to probably charge an insurance company that's what the financial policy does the financial policy sense for it that the insurance company's going to be charging he's responsible for his the doctors with no g as as your adversary's pointed out it does seem that the hospital agreed in the district court at least for purposes of argument that the hospital qualify generally as a as a creditor was that was that concession on the basis of some agreement that was different in kind than the than the agreements that we have before us in this case not at all it was simply a concession to tell the judge you don't to worry about that issue on the motion to dismiss you can just focus about the focus on this specific transaction as to whether or not this was a credit transaction that was the sole purpose of that concession the concession was clearly just for purposes motion for no other purpose had the motion not been dismissed that would have been disputed presence girls were taking a position that it's a creditor generally i don't think it ever has i don't think it's ever been  it's something we we can evaluate on that basis your claim of course was the recipient of the sanctions or word answer to the extent that you were willing to address the issue and for your assistance to the court in taking these issues through and we appreciate it but we recognize that this is something that was imposed by the by the district court if i remember looking at the propriety of that on the on the us think through them would you like me to address the issue that was in the court's letter as to whether or not the court can issue that's one of them because i given the terms of eleven indicated that levin allows attorneys fees only in cases where there's a motion by a party and if you look at it it will lead in muncie for the wall doesn't use the hearing top amounted to a motion is the same thing as a motion i believe it is in and particularly in this white house at the same the counsel didn't receive any prior notice well they did in the order in the memorandum in december two thousand and seventeen or sixteen there was an order and there was an order within the opinion dismissing the complaint specifically said order to show cause to explain why plaintiffs counsel had the basis to bring the complaint in the claims that they did but beyond that it didn't specify points of of points that would be dispositive of the rule of a boat in other words that we're dealing with notice sudden opportunity to be heard if i just know you are under indictment and i will tell you what the charges are after we argue it but those who give me much notice as to what your  for well i think it did because the court went through the fact that they made false allegations in the complaint that it was wood and that they didn't just make the false allegations in the complaint even after the certification from jena peanut was filed in connection with my motion they were true only v f p a claim they didn't which are draw any of the specific paragraphs in opposition to the motion to dismiss they didn't come out and tell the court no payment was ever made that's correct prompting the judge to schedule the conference call i think it was december fourteenth some fourteenth two thousand and sixteen the checkpoint to get to the bottom of it because counsel wasn't being forthcoming and it was during that conference call the judge belsen specifically asked them was there payment meter not and that's the first time that they ever came clean and said no payment was ever made of statements and then in those allegations in the complaint the factual allegations are false what are we to make of the  district court repeatedly saying that it's not basing sanctions on that claim on the withdrawal of that claim and yet these allegations seem to be related only to that quite well see i disagree because as we discussed earlier whether or not there was a payment may suffice as consummation of attilla that so that and i think that's why plaintiff didn't which were all the specific allegations in the complaint that there were there was no question able to find that there was consummation and that was that that act was acceptance if you put aside the written agreement requirement but it was not really resolved with the to undergo a payment i don't believe so because it's our position that two hundred dollars payment was made under the financial policy not as part of the payment plan and even the emails there's nothing in the e mails that say that two hundred dollars payment prior to surgery was part of any payment plan well that based on something this was not a loser there so as a judge on while here with this type of a condom i think the judge may have in your checked it his personal opinion but i don't think his think this case was that on during initial conference with judge nelson plaintiffs counsel cited to the ball purses bright opinion ball versus bright does not support the plainest position in any way shape or form included in the ball  by the plaintiffs which they allege maybe it could be extended and i think that's where the judge was getting upset with the situation that he had in canada but there's room for debate about what the significance was of of the two hundred dollar payment i understand you characterize it one way but that is not necessarily the only way it could be it could be views and how could we conclude that the district court was was right to deem the argument the existence of an agreement or qualifying agreement as what would need to be patently frivolous when the district court itself said in connection with summary judgment  that the federal reserve should consider revising the regulation so it's clear that you are does not extend to your combinations of delay impeachment isn't that a recognition that this is an unclear area of the law i don't think it is because if the court had in front of it the ball vs ball peen the end and the federal reserve board comments and the federal reserve board comments are also almost right on point the only difference is you're dealing with a bank versus a hospital the brain was thirty years ago it's a single court that hasn't been followed by any other sense so how could that be a basis to conclude that an argument to take a different tack is patently frivolous in that plaintiff's counsel was unable to say to any written opinion from any court in this country that allowed her to would claim when there was an unwritten agreement and there wasn't something that was consummated enforceable obligation against the plaintiff and the email still offering this payment plan to be paid by credit card which plaintiff says the room it was it was to be don't doubt the problem is checking cal doesn't even come close to any published case i will be very brief understand q thank you for the court's indulgence rothman's contention that the financial policy created debt is not correct based on the own terms like the actual terms of the document the document itself if the court looks at it specifically references a signed financial agreement that would be required in a variety of circumstances suggesting that this point intra policy is not in fact a financial agreement that there is some other type of document that would be required that says if you are a sole payer if you are uninsured you will be required to sign a signed financial agreement separately so this is not in fact a financial agreement second point the consummation here we have alleged in the complaint paragraph twenty that the terms of the agreement was that there would be a two hundred dollars down payment and one hundred dollars per month the consummation occurred when the two hundred dollars down payment was made two hundred dollars was it was necessary for the deductible in full before surgery what do you want to do with a negotiated ok you're going to pay us two hundred now and you're past one hundred a month and those were the terms of the agreement robin is takes the position no no no the two hundred dollars payment just came out of the blue it concede that we are missing something equivalent to a signature on it whether that be a checkbox or whether that be consent or something else that would be the legal equivalent of a signature boxes as i agree to the terms you mention here in this church because that's the cases i three signature yes are in the same way that my slash s replaces my need to actually sign my pleadings i'm still confirming all of the various ethical responsibilities that i have i'm still submitting the brief to the court is an officer of the court without hand signing  there's a specific acronym that's it's scaping right now but there is a specific but where that does come up even if we were prepared to accept that by and checking off a box or no on a website or sending a reply email that came from your personal email address was the equivalent i in today's age of a signature we don't have either of those here we we don't however your honor we do know that mr wolfing to gave consent over the phone and whether or not the party taking that consent checked a box on a form or something else in roffman system they could be the functional equivalent of a signature that is what i'm saying is the possibility that in fact he was consenting providing agreement yes i'm going to be bound by these terms i begin your honor it's given it's no it's going to end up no i didn't say that yes you said that i didn't say that well because presumably the lender would then be providing a copy of the document to the bar which we don't have here so there wouldn't you wouldn't have those issues under those circumstances but again given the purposes of the statute we think that's appropriate here but the ministers it has taken a different view and are our general approach particularly where looking at an agency's only interpretation of its regulations is that we give that great deference and it's generally dispositive unless it's not rational does that does the requirement that it be assigned meeting that requirement is that so irrational that we we should accept the agency's decision to draw a line there to address the concerns that cases it's for her and i personally think that given that the purposes of the statute it is irrational to let a lender decide whether or not it is subject to tolo disclosure requirements however i don't think the court needs to go that far in order to reverse the dismissal here because i think at the very least there is sufficient evidence to show that an agreement may be in existence and should have been subject to discovery in light of what we have alleged i also think in terms of the sanction the fact that there is this conflict of is a writing required because that statute doesn't say it in the regulation does what is sufficient to constitute a written agreement even the regulation doesn't answer that it may say in an interpretation that a confirmation or an oral agreement isn't enough but it doesn't say what is the fact that we've had this robust discussion about these issues for some some period of time this morning all goes to show that in fact there was the plane just cancelled did nothing inappropriate by asserting the claim here even if this panel were to optimally decide that that  the claim should be dismissed and i guess my final point is i know that we talk about what the allegations of the complaint are and does the complaint specifically say a written agreement and i had to answer no it does not use that exact phrase written agreement to the extent that that would have been the basis for the district court which it isn't or an alternative basis presumably we should have been allowed the opportunity to amend we could have alleged upon information and believe based on what we have that a written agreement exists and is in the possession of walkman but we did not have that opportunity because the court decided with prejudice and in its entirety to dismiss the case based on a concession that was not made so for all those reasons we respectfully ask that the court reversed be both the marriage decision reversed the sanctions decision and vacate the monetary