contract and seeking exclusively a contract remedy so the six year statute of limitations a c p l are two one three two two says an action upon a contractual obligation or  limitations as one year applies to an action to recover any over charge of interest or to enforce a penalty for such overtalk overcharge so on its face if if you interpret over charge  of action to recover over charge to include a charge of more than what was agreed in the contract and that too could apply as and that's what the district court would tell me about tell me what the breach here was the breach of contract in this case there was a clause it was called no specifically says it will be a simple interest rate at ten percent right ok now your claim is that because the value of the stock that your client delivered to let's talk about paragraph four paragraph or so securities delivery in lieu of cash payment that sounds like delivery of securities instead of a cash payment right ok is worth around a dollar share or so you want to buy six hundred thousand shares and i say ok i'll give you a choice you can either pay me cash in ninety days or you can just give me the shares shares so apparently mr shipley was willing to accept the risk of the fact that the shares might be east devalued and be less than six hundred thousand dollars and he was going to get ten percent of the contemplates past the contemplate that it is considering the payment of that it's only in there because there is a payment of two different sets of securities that are of variable of of changing value over time and because of because otherwise i'm going it does not alter the terms of the payment and won in simple english it does not what it does do is it recognizes that the legislature may decide to alter the rate of interest  interest contracted for charge or receipt it does not have language in here that says and to the extent that value of the shares exceed the principal they will be deemed interest on the principle do it doesn't say that doesn't would it would be in a completely meaningless extraneous clause because does not i just gave you meaning to it i if you know if the if the if the loan if the interest rate changed by it by the state at some time after the loan was my view in my view because it's not a usury case you've got a problem and so i want to just tell me very quickly read to me the language in paragraph twelve that says that payment of stock that's valued in laws if if i may just take to it one more minute the usury law by its language doesn't talk in terms of strictly payment it says any value received include securities this case law can i just ask a question before you before you and it just this is just the question you know the the contract was it's and then it's a ninety day contract eventually she defaults and i think as she suggests that she kept them and she kept getting dividends and she didn't end up transferring title back to him to this years until october sort of the following years of october becomes the relevant date is not what happened did she in fact practically speaking give up her interests of member of that exact your honor exactly right that she did not give it she continued to be the talk of the owner and she continued to receive valuable  risen in value and had a deep market value of over two million over three up to three million dollars and then up to that point the lender considered did not consider himself the owner was not receiving them the money and considered himself  one fifty the facts of that are promissory note just like here and the plaintiff's claim that there was an excess interest payment that excess interest payment was based on the u c c they said that the point of the l for such overcharge the term any of the term overcharge or clear term and he was not limited by this statute is not limited by the legislature the term overcharge means a monetary charge this is from the court this is a quote in monetary charge in excess of the proper legal or agreed rate or amount and of course that action stemmed out of a promissory note of an excess of a lot same here chessman claims paragraph twelve if at any time and key word is interest just one wants to substitute that after you get through that do you then somehow call it use your accounts in the paragraph it softens as well if it is you serious and you have to refund it's it's clearly contractual language not not a of interest but it just says you deem it use your ears and you'll refund abortion my problem with that analysis is that's really a breach of the party's agreement as opposed to manifestation of a charging of a rate that's prohibited by law it's just the mechanics of how you carry it out when there's an actual charging of read in excess of that that might be put to fifteen's directive that it's curious that there's no practice commentary whatsoever and two fifteen six yea and everything else but but in that and the new york cases seem to say that we're having a fight the new york state cases scenes where you're having a fight interpret the contract that's a contractual breach case as opposed to usury right and my concern is is that i think the district or perhaps misapplied and it relied on a single district court decision which in my view was not correctly on ruben and that case expressly disagreed with englishtown which is the case plaintiff relies on and and ruben was clear that it disagreed with englishtown and it said the question remains whether c p a large six extends to actions other than usury in this respect presume you're wrong oh no i still win yes we still with there's a six year statute of limitations if we accept that even if the six year period applies the claim is still time bar just need and the parties agree on a cruel there it is when a party possesses a legal right to demand payment and the note tells us exactly when she had a legal right to demand payment the note says at any time when she made the demand it is when a party sorry when he made the demand know me that the difference now obviously the difference she could but she continued to have the benefit of her claim is that you read the contract she's entitled to a refund of some of her money and the value of the stock exceeding the value of your indebted  right there is no dispute and but if she's right about that her claim accrues when he ultimately owns the stock right now i think that ownership theory is is a red herring it ownership has nothing to do with it not only that the september two thousand a payment the warrants which play expressly claims increment to really increase effective interest rate there is no dispute those warrants were given on september two thousand and eight that assignment is signed by her and she does not dispute that the dispute is over she says instead of giving the preferred shares in october two thousand and eight which would make sense if she was giving them as collateral she says she did not give them a year until year later but the evidence shows that she received the preferred shares in october two thousand and eight not only that legal right to demand payment would arise on september two thousand and eight when she got the warrants which is part of her claim it would arise when the interest was contracted for charge or received that was contracted for on august twenty first two thousand and eight it was charged no later than the date that they w due when the note was due november two thousand and eight and it was received on to date one date september two thousand and eight that starts the running of a statute second date october two thousand and eight that starts the running of the statute so on any date you start the running of the statute this claim is time barred and finally should the court move past the statute of limitations it can still affirm because there is no merit to this claim that an interest that there was an interest payment the note is unambiguous look no further than unequivocal language of the note it explains what the shares were the preferred shares could be given she could repay the principal of this note in whole but not in part by delivering the preferred shares and of course there was a six hundred thousand dollars loan preferred shares were greed to rate of six hundred thousand dollars and shipley took the risk that that could have went down and she could repay that and that would equal six hundred thousand so there was no interest payment there  they wanted to buy the shares and ms jasmine didn't have the money her husband was in a criminal case and she needed money so instead of going to the criminal you know there was enough money but they wanted to buy the shares and so they did this transaction to get the shares at a time that they two or three i am just going to risk to others that the stock became worth two million dollars plus in the following year but at the time in november when she theoretically was in default i assume we threw it at the sigma six hundred thousand was and of course it was six hundred other because that's what the parties agreed to because it could've went up or down he took a risk right and that's why we don't need to look at what the real value is it's nine million dollars now and that's what the point i was trying to do here under the in directly charge take or receive any of that money goods or things in action as interest so it defines very broadly what it's received and indirectly or directly and the case laws and as well as  that that was i was reading from general obligations of five five zero one five five thirteen that also talks that every person who for any such loan or her parents shall pay or deliver any greater summer value and  that it's unlawful the issue of whether this was a violation of the usury or not was not an issue that was reached by the district court and it was at very early stage we've had no  she was acting if she was in good faith working with this with this lender and your daughter is what was what was this deal all about it was not just it there were different interests and whatever was going on like no no  give back to repay the loan that that that's not exactly accurate she she invested much more than that mr shipley didn't want to buy this outright that this this arrangement had addressing different risks she ended she hand she gave that we played a part also that she had invested in this offering of preferred shares additionally she owned nine nine thousand almost ten thousand of these preferred shares mr shipley had a great interest in this in this company succeeding in this in this raising he was not willing to take the risk up front that the exchange of those shares this this agreement as a balance is we've never had a chance to explore those at deposition it was a premature motion for summary judgment the district judge only only focused on the statute patience question which he was mistaken about he also was mistaken about the the facts he had a misunderstanding about the number of securities and what was involved and i think that might have influenced his his decision on the law it doesn't impose any any duties or burdens on them which is quite the opposite by its very expressive language it supersedes notwithstanding any other provision got withstanding paragraph or not which in any other events this is an obligation on the lender to make a refund he they've taken what they do is they protect themselves against the the remedies the consequences forfeitures of the usury law what are they doing so they undertake a contractual burden and obligation and the courts should not allow these lenders to just treat it as if it was you know not you know it's as if it was just the pro forma and didn't didn't have one in fact