i'd like to focus on three legal errors that were committed by the district court in connection with a third course of action in the fourth course of action with respect to the third course of action essentially the court dismissed it on the grounds that it was duplicated with the reps and warranty claim had available if your suing under section eight which was dealing with the breach of reps in warranties is a repurchase cure or repurchase with respect to the loans that breached the reps and warranties with respect to the third cause of action that claim is seeking the damages that relate to the misrepresentations so that unlike with unlike the initial claim there is an additional element of proof that has to be requirement to show that there is some kind of nexus between the misrepresentation and the loss there is no such requirement with respect to a claim under section eight which is essentially if you show that there is a breach then you don't have there's no separate in out and has to pay money to somebody else yet widgets and that may also be damages out of a breach of contract claim but it ends up in the nature of indemnification some degree to or she becomes liable to somebody else for that she ends up paying money to them for that that's indemnification but your this is no different than just seeking money from greenpoint for any injuries you've gotten because greenpoint blatantly misrepresented what to the structure of the indemnification agreement in the fact that the initial clause expresses the obligation to indemnify and then there's a separate clause which segregate which is separate from the initial clause which states that if there is a third party claim and then it has some notice requirements so in his decision he made clear today that clearly indicates that this was not that we would like negative implication because the last sentence made a reference to third party that he was suggesting that maybe the first several didn't include that but that was not a clear affirmative statement that this is a bilateral indemnification clause such as made each party liable to the other for damages incurred upon breach you correct not not along the terms you describe but certainly in terms of the way you described it and you look at the intent of the parties the intent by including the segregation was that there would be a number of occasion in the bilateral context even for that from the the from the language of the parties but it's kind of the absence of an express thing to the contrary in a mention of the third party in the last sentence while framed it i would frame it in terms of the fact that they actually had two mechanisms with respect to enforcing that particular clause one required notice and one didn't indicate that the understanding was that there would be no requirement for notice if it's actually damages that arise from the bilateral relationship could you speak to the fourth cause of action please yes your honor why it should course of action there were two grounds on which it was dismissed the first was that the the that greenman there was a different agreement in connection with the original pleading and the men depleting but that's not the operative test under rule fifteen the operative tests is do both pleadings arise from the same transaction occurrence or conduct and here the answer to that question unequivocal is yes because it has to give fair notice that same transaction as well as the notion that the defendant fairly been put on notice by the summons with notice that you served or filed and it seemed to me that although all of these these are complicated transactions that have many parts you could construe it as one transaction that in fact they have very different purposes these agreements and so i find it difficult to understand why the district judge was wrong and construing them separately your honor because if you look at the actual reference and the sum is written notice it basically makes a reference to the they are not coextensive you are to essentially talking with respect to one of the critical reps and warranties is the repping warranty that there was compliance by the originator with respect to the underwriting guidelines that is in essence what is one of the core claims is critical to  a claim it's also the claim that is involved in connection with the violation of the in the unification agreement because it's exactly the same representation with respect with respect to exactly the same loans with respect to the same loans that were transferred to the same trust which has nothing to do with the certificate there's a claim against the originator that the originators mortgages for john as opposed to in compliance with the underwriting the the green point information which is referenced in the prospective supplement that was actually disseminated in order to market the securities but it's the same representation aren't you have some time for  and the answer that it is we urge you not to quicken loans decision and the what we call the four and the prior greenpoint decision are right on point the first the first department has addressed this issue suffer any delay that we you know i don't want to have to incur in this case there is actually no conflict among the courts as to how this issue is treated two panels of this court first the other issue which i think is important to this is the court of appeals may never decide that case the as the reply brief of the plaintiff pointed out will they claim that the argument would be an early this year in fact  exactly your honor so this is not something the court of appeals is hankering to decide like the first apartment's having doubts well they unanimously ruled so i don't believe that there's any real dispute here and this court as the standard apical standard is unless there's persuasive evidence to the contrary this court should follow the first apartment what happens if you're surprised heels does go i just don't think that there any realistic chance of that and that actually what's more likely your honor is because of this delay that sometimes is a signal that the case there's parties maybe settling the case and that's been our experience in certain cases the co which my adversary i think misty did have how it played out especially the hooper case the hooper case deals with whether there's a first party or third party claim and the there has to be strictly construed indemnification clauses are to not allow third party first party claims and the presumption is that there are these types of indemnification clauses relate to third party claims but what but what he didn't he sort of conflated was the idea that let's assume for a moment that this is a first party claim and it's allowed judge carter's decision and all the other authorities that we presented the goodpaster case the tenth circuit case assuming a first party claim is allowed if you call it indemnification it doesn't change the nature of the of the cause of action it's a breach of contract cause of action and the authorities are one hundred percent on point on that so the applicable and what was misleading also was the first and second causes of action weren't described correctly the first cause of action is for specific performance which is repurchase the second cause of action is for damages one point one billion dollars  and that's because there is no sole remedy clauses are often is in these cases so and that circumstance the third cause of action is really just a carbon copy of the second cause of action it's seeking the same damages and as they acknowledged seeking damages for the same breaches of reps and warranties so the same statue of limitations applies and the fact that they call this a remedy the section nine of the of the of the  contracts they call that clause a remedy that's fatal to their claims because a remedy as is the house doesn't change the underlying act in aid yes the alternative remedy was t repurchase the court said that doesn't change the actual actor complaining about which is the wrong alleged wrong or misrepresentations or missions are you was just a mechanism by which one you at the time of the closing which was noble because the way these breaches ultimately become known as they have a forensic lot of these and they discover that the compliance rate with regard to loan to value ra is less than ten percent you know there's there's no there was no verification that their owner occupied there was no income verification you know i mean there was just a laundry list of why god frank was necessary  in this case it wasn't on the date of the closing of the trusses on the date of the morgue that what we call the p p t i was which was the date on which the loans themselves were sold which was more than six years even before these f and i mean if you will see from our briefs of course that we have multiple reasons why all of these claims are time but to address the fourth cause of action absent why was the summons with notice does refer to breaches of the promise that the decision to originate was conducted pursuant to the originators underwriting guidelines and that's what's kind of picked up in the indication agreement i think in the forced cause of action absolutely your honor so there are a series of reasons why the fourth cause of action does not relate back one of them was i made it for my adversaries discussion which is two of the trusts actually have reps and warranties that were of exit that were made on the execution law we haven't even addressed that in this argument but there are no cases where there is a relation back to our knowledge in fact new york courts are unanimous and not allowing that and i would cite nine cases in our brief on page thirty eight that do not allow that judge carter also picked up by the idea that you can't relate back to something that is regional pleading that is untimely so if the first three causes of action on timely as we pointed out you can't relate back to that the weight of authority on that is on our side we have the seventh circuit case like the district court cases from the six and nine circuit that are firm that were firmed that make makes total sense you can't just breathed life into a new pleading so finally to your point you honor the difference you can only relate back to something that gave you notice of the claim a summons with notices and this is a new york feature of new york practice are fairly short documents that talk only about breaches of reps and warranties in loan sale agreements that greenpoint entered into with lehman brothers the this is these new agreements that came up in the middle of the case when they decided to  mend their pleading to try and save their case these are marketing agreement these agreements relating to the marketing of the securities to investors f h if a had no ability to bring a claim under under those agreements so we would have no notice that this filing by f h f a which is not even a filing by the trustee we would have no reason to believe that these other agreements were somehow implicated and since notice the touchdown touchstone in this type of thing there couldn't be a relation back transactions on occurrences are different thank you you thank  not the decision this court is a case of first impression for this court whether time when this is a preclude or for the application of relation back there are two cases go the other way one was a decision written by judge called brown as when he was on the on the district court where he made it very clear that because of the liberal purposes on the line rule fifteen untimely this is not a requirement is not a basis for four for not apply in relation back and he relied in addition to the liberal purpose of the rule he relied on the literal terms of the rule if you look at the actual rule there's absolutely nothing in the rule that contains a requirement that the original pleading be timely for purposes of relation back and the supreme court in the crops case interpret a rule fifteen addresses precise issue in terms of what are the requirements on the rule fifteen and made very clear that those requirements are exclusive and in the context of rendering that decision also indicated that this is not an area where the district court judge has any discretion in terms of whether or not to apply it if there's a determination that it otherwise complies with the requirements of relation back in the fact that the original pleading with untimely is not a basis for concluding it and the other case was a fifth circuit decision coldwell where the original pleading was based on a nineteen eighty one claim that wasn't timely and they permitted an amendment to end to end to include a title seven claim that related back even though it would have been untimely  i believe that you should wait for the court of appeals it's a significant ruling there are there obviously you know enormous replications in terms of what's at stake in this case the court has taken it it's based on a clause that is  separate agreement and also was not one that looked at the accrual issue but with respect to we we were respectfully request that the court do defer they've been submitted obviously we can't predict exactly when the decision will be