we have to hear the fact things like that all over again and to it i agree with you your honor although i disagree with you that the cases are that similar i think they're they're actually quite different as i'll get into another now i understand that all i'm written no sir it was not in fact it was indorsed well i have two parties or so that the first direct answer question is no the check was made out to ruth a bar planned administrator t r experienced this myself i worked for the biggest firms in town for four years and i went to work with mr holley of parker hudson for two and a half years i did banking law usually i was representing banks now assume banks i went out on my own in two thousand four when i did that one of the first things you do a solo practitioners you learn the economics of law from practice which something you've never learnt at a big firm like king and spaulding or parker hudson and i can tell you many a time when clients would call me and say i need your help i've been su i've got two days to file an answer i'll represent you here's my contract i need a check and i need to make sure that checked and bounced so i did little to get out of the bank many a time and you get down there knock my firm as you see on the pleadings is the law office of jason is kaufman and in my noticed that they wrote kaufman law firm let me tell you folks it is difficult to get that check into that account but but this is kaufman from there is no cost a lot from it's the law if they just made a mistake they made it this way now several times i was able to get it done but i can tell you banks know what's going on forged indorsement cases they always turn on discovery not that that's not that this issue it is you right now it is not your honor because the district court never got to the merits of your claims at least with regard to certainly with regard to the regions because the district court filed that for your claims you didn't have standing under the u c and that the u c c preempted any other common law remedies you might have so you have to prevail on standing issues to get to the forged endorsement issues yes and here's how i can do that this you see in the legislature nine hundred ninety six when they adopted this language never intended to preclude these cases in fact it says in there to the extent we don't provide a remedy you're not precluded why are these c i'm here under common law you know why the legislature says these three people have to proceed on the u c say because they have many different duties and they get many different notices their statute of limitations for example your honour's is far shorter than my four year statute for conversion you know why because you get a monthly statement i've been to that these days i get a copy of my checks in the old days i used to get the checks themselves so i get immediate notice of what's going on in my account in your garden variety forged indorsement case it may take years to figure out that there is fraud the legislature never intended this type of case to go in line with the people who an issue over a check who are listed on it as a pay the classic indorsement frauds indorsement case and i cite to this court and one of the best ones that i think puts to rest any notion that this case is somehow preempt about  the citizens bank dallas versus stuart case in that case the plaintiff thorton was to receive checks that were made out to confederate insurance company now its employees with those checks forged the endorsement and went to another bank and was able to get away with the funds by the time thought and figured out what had happened and again the reason he wouldn't know is because he's not getting a bank statement saying hey by totally different set of standards it's also a different set of standards for the bank they need only show they act in a commercial reason manner and in good faith now most of the cases where these cases have been thrown out it concluded they've been purely on c grounds and in many of those cases they did have an a claim under the u c c and i agree you can't state both now perhaps the closest case that one would come before this court was the one i was referencing  your order was the midwest feeders versus regions bank case that was argued in december i believe december thirteenth of two thousand and seventeen that's a very similar case i believe it was a forged endorsement case i would be honest this court came to a different conclusion and is determined that it was in fact the case that lack standing pursuant to the u c c i would respectfully suggest that that is not the case that in forged endorsement cases you fall outside of the u c c and the legislature never intended for you to have a remedy and as the webster case points out they never intended to preempt it your honor their next and again  correct she never reached this issue because she didn't have to because of the standing in dicta though she does say that it was a proper endorsement we vigorously dispute that i believe in order to properly endorsement to endorse it that mr barnes needed to add the language that is on the pay of the instrument we also believe that the case law in georgia demonstrates an upside of the cases of this court that there is a separate issue once it was indorsed i know they're going to say it's bare paper but it still was deposited into an account having nothing to do with the payee that should have alerted the bank most of these cases that they're citing were resolved at the summary judgment so they are not here i've not been able to get  discovery in this case we do believe though that once we were able to get discovery we would be able to demonstrate that the bank was on notice in this court in the h s i chang versus j p morgan chase bank case which i found eight forty five fed thirteen eighty seven it's a two thousand seven hundred case by this court found that in certain circumstances and this is a completely separate argument that would support a claim and reason for reversing the trial court that if a bank participates in the negligence gross negligence aiding abetting fraud or conversion and they do so if they're aware of a fiduciary relationship and they're aware of the potential fraud we believe in this instance that there were two relationship within this bar which was a longstanding one and this alleged in the complaint the affidavit of miss leslie bass which was added in brief and included in the amended complaint to add these issues we believe that they knew of miss bars poor credit history the fact that she often times ran over her limit that fact that she owed reagents bank's money and i think that would support an aiding and abetting  negligence claim and a conversion potentially fraud claim especially if they look they looked past these issues with the check because they wanted to get the money into the camp because she owed them money you didn't plead a breach of fiduciary duty claim right not in this one and i was going to close with that your honor i have fifty seconds and that's why the case against for deleterious so different i do not obvious that there is no fiduciary relationship for reasons bank they were a stranger bank real quickly your honor for some almost at a time we believe that the with we called them they gave us the check they told us they would investigate and then after about a year they told us they were going to anything if there was no fiduciary relationship why did they do all those things are you the remainder of my time morning med please the court i am holly for reasons back i will take the first ten minutes and address the u c c issues this is a consolidated appeal the last ten minutes will be taken by by counsel for fidelity i agree with mr kaufman absolutely this is a forged indorsement case that's how it was pleaded that's how it was brought up that's how it should be treated under commercial paper what's missing is a fortune this case falls under commercial paper for two completely independent reasons the first one is a statute that is controlling but was never briefed by my opponent below or in this court despite the fact that it turns at the issue the question that's raised is when a check is made payable to a trustee for an ira who is it made payable to and there is a statute that tells banks exactly who to pay and that statute is eleven three one ten you see three one ten section see the title of the statute is identification of persons to whom instrument is payable c says for the purpose of determining the holder of an instrument the following rules apply section two if an instrument is payable to subsection a i a trust or estate or a person described as a trustee or representative of a trust or state the instrument is pay trustee the representative or a successor whether or not the beneficiary or state is also named so in commercial paper when a bank gets a check that is payable in the way that this check is written and we know that an  trust we've cited the federal law and that they know that the endorsement that they take is the endorsement of the trustee in this case and you'll see the check it page twenty four in the record the trustee was ruth miss barr endorsed that check in blank at first her signature appears on the top and as we all know under u c c commercial paper that means at that point it became bear paper there after she deposited direct a deposit into an account that she had an interest that's well in fact and because once it's indorsed by her it can be endorsed anywhere that at that point this case is over the u c c has provided a remedy if it is a fortune  or segment but it's not and that's why in the footnote judge may said this check was properly payable but there's another reason why this case was dispositively result at a motion to dismiss level and i argued the same issue to judge childe flat in a panel in december of two thousand and seventeen and that is there is a limited number of persons who can bring a claim on a check and we may want to debate that but that's that is what a statutory determination a compromise  within the u c c and the appellate year was not one of those three people as was the appellant in midwest peters it was not one of those three people went cases from george or elsewhere decide that issue on facts like this your honor we cited in our brief the long history of cases that are not there not like this one and there's not there's not a case in which section one ten applies you're correct there are plenty of cases though that talk about if you are not the right the general principle that i know that but there are no cases like this one right correct that there is there is not a case in the trustee context and that's why when  argument was requested we indicated to this court that we were unaware of the case on this particular issue in this court although there have been other cases that we cited below and we believe the judge maze decision is correct we believe that you cannot get and the check to his sister in law a miss bass which judge may noted that simply did miss bass was named a trustee his remedy is whatever contractual relationship he had with miss bass let made this point in the oral argument to them it was feeders case as many courts have before the mistake that's made here by plaintiffs is that they mistake an interest in the funds that  belying and underlying the check with the check itself what's at issue here is the way that banks do business and did the bank at the instant when it received this check pray the pay the proper paid i heard at the end of mr and b his client is not one of those people who are in the group of people who are allowed to challenge to check the draw are the payee holder or if it's a lost and stolen instrument all of that analysis the analysis the first case that was other things you don't have these common law claims that are brought in that's common law preemption that built upon a series of cases in georgia at the dudley case the roswell jeep case that promise or case written by judge moore was the check case that is challenging the negotiation of a check we have a set of rules that governs that and those rules are the u c c and if we start changing those rules then we change the whole way that commercial paper works what common law remedies are not preempted by these georgia if it's an issue that is if it is an issue that is not within the statute that deals with the check so in over writing that transaction and then that could be different what's alleged here with regard to regions bank judge jordan is that some teller at a counter took a check looked at the check accepted the endorsement of the trustee that's the pleated facts here if the facts were different if the facts were that there was collusion or something else then we would have a different case the conversion claim that my learned opponent referenced is absolutely subsumed within the u c c three four twenty conversion of an instrument and three for twenty sets forth the exact law and conversion in fact my learned opponent would say that he gets to raise fact issues uncommercial judge of the seventh circuit wrote the opinion and the reason why i'm going to cite this quote is because i think it encapsulates what's going on here any number of these cases that we handle plaintiffs come in all the time and they say no no no let's throw away the u c c let's find a different way to describe the relationship well if you do that that thwarts the whole purpose of commercial paper that's why the u c c exists so that when that check comes in and t it there is a set of rules that allows that check to be negotiated were not negotiated and business to rob this is what the judge would said based upon a similar type argument this novel interpretation of the familiar this case turns on eleven three one ten says that if it's a trust it's the payee is the trust easy this check was indorsed by the trustee that's it that's how commercial paper works in less there are questions for reasons i'll yield my time to the council for fidelity thank you thank you mr holley oh may i may please the court john bolus for fidelity investments institutional services as a court recognized in consolidating the regions from and fidelity cases there's a great deal of overlap between the two cases since the bassa state through its amended complaint essentially is seeking the same relief from fidelity as from regions based upon the same conduct by ruth barr the sister in law of david bassett depositing a check made payable to her as trustee into a business account as with the region's claim there is a lack of standing to enforce claims for conversion under the ga commercial code  and conversion what was what was one of the calling from brought in the amended complaint as with the region's crime there is preemption of the other crimes so if we're talking about what happened once a check that is governed by article three was issued and accepted by a bank and what liability might result the common law claims are preempted and mr holley covered those issues very well judge may correctly address those issues in her ruling on our motion to dismiss finding that the judge made the regions complaint as well don't you also lay that out and said that mr bass had instructed fidelity to provide a check may be able to develop the point that point i'm making is that which i think  if someone like mr bass asked fit delany on one of his accounts to write a check to x and fidelity writes it to why that's not that claim is not preempted by the u c c right you're correct your honor but that's not the client i don't know meno it's not but his claim touches upon and that's why i'm saying there may be problems on the merits of it but it touches on the purported negligence of fidelity in handling his account and the way that it does burst a check why is that claim preempted well the is internally in consider its inconsistent with the remainder of the complaint as amended in this case because there is no allegation that fidelity failed to follow the instructions of mr bass the only improperly disbursing them from his account and that fidelity acted negligently with lack of good faith and failed to exercise ordinary care in handling his account many of you own many of those claims are lifted directly from the regions complaint and have to do with the way a bank in the presentment chain might have dealt with the check but if you look at the the amended complaint in this action there is no allegation in any allegation would be inconsistent with the statements made in the complaint that fidelity was instructed to provide the check payable to the ira and ministre her and provided that to mr bassett then delivered it to mr bass fidelity didn't participate in the present my process it was simply the drawer of the check and so that this gets to the whole point of we believe that these claims are preempted even if you get beyond preemption to the merits and on a twelve b six analysis these claims cannot survive and did not survive judge may correctly found that there was no allegation of facts that would support issued the check in a manner that was instructed by mr bass i guess the way preemption comes into the case on your side is because there's also a claim i think in the amended complaint that fidelity also acted improperly by ultimately pain the check when it was run through the banking system from regions and then went to i guess for delany's draw or bank and then it was paid out without objection from fidelity that's that's essentially how i guess from your side the u c c kicks in and knocks out that sort of claim yes your honor and it certainly would be preempted because the c not in article the re not only covers banks in the present a process but also the drawer of a check eleven dashed three dash for fourteen covers what happens when a check that drawer draw is is accepted by a bank in a drawer is discharged from responsibility under three dash four fourteen so you have a comprehensive remedy that is provided by the u c c as adopted in georgia and for that reason preemption applies so that based on the complaint as framed by the plaintiff in this community point there are no allegations that could survive and judge may correctly found on the fidelity first because again there's an overlap and but but but they are they are they do have distinct duties because we had a relationship with them we can see that mr holly's client was a stranger so threw us out and standing on what did you allege in the complaint about that your honor read from page three of the order we alleged a general allegation that they acted improperly at that point i believe as the allegation in the  factually what did you allege in the amended complaint that fidelity did or didn't do we have two claims as again well we have to like it's like a venn diagram but we have two subsets of claims against fidelity we have one subset of fidelity to do we he asked them to issue a check so that he could transfer the funds and does it's a is the complaint specific about exactly how he asked for that to be done it's not something that's been explored around or is the complaint specific on that or not i know it hasn't been explored in discovery what is what is your complaint allege that mr bass asked for your honor i do not know that at this point we dispute that issue we have raised other issues for example what they did after we reported the check as being a conduit they failed to conducted out of a good investigation they failed to act with reasonable care they failed to do as promised but as to the what happened with would be a fact intensive paid or before your honor or before that in other words when we asked we asked them to produce a check they have a duty to do it in a promise that they produced a check and give it to him my part i'm trying to figure out where your breach of fiduciary claims against fidelity come from and merits wise i'm speaking only for myself it request and gives the check to mr bass unless there's something i'm missing it's hard to see how there's a breach at the front end i understand your argument about the backend about paying the check not objecting not conducting an investigation there stand those claims but i don't understand the front if there is a front end fiduciary duty claim i don't understand the basis for it your honor all i'm saying is this it's not alleged at this juncture it could have been my point is she didn't allow me to do that if we were here on that issue i don't think we'd have a problem i grew we haven't alleged at this point that is that you haven't you have an alleged breach of fiduciary duty with the writing and disbursement of the check at the front end correct ok believe that there her dismissal goes on standing and so that issue of fidelity is improper i'm going to move back to the first argument that we that is the central to this case is this a fortune or smith case it is your honour's if the judge is affirming you are going to eliminate and i do mean a lemonade a whole subset of cases that have been brought in georgia for hundreds of years this is always been the law in georgia if mr holly's rendition of the law is correct then you've got your honor can go to the two cases that i cite that are particularly on point tifton bank which will find it to fifteen george at four seventy one in the citizens bank versus jordan case that i discussed earlier those cases they would have been kicked out on standing grounds mr ali says it's not a forged endorsement in the tipton case the check was made out to confederate insurance company not to the plaintiff it was properly indorsed in deposit into a stranger bank yet he got a trial and it was affirmed but that's not a trustee scenario and that's that's his argument and your honor that's what his first argument is it was probably endorse his second argument is as a trustee will i got one for that to the tipton bank versus its versus nice furniture in that case the put the plaintiff's attorney got a case and then he properly endorsed it exactly it was made out and he had the right to do it as an attorney right but the problem arises that's also a trustee situation as is the chain case that i cited what you know what happens in tifton bank the same exact thing it's they are  endorsement might be property does not mean it's not a fortune indorsement case affords indorsement cases even if it's even if you do it exactly right judge jordan and then you turn it around you put judge jordan it can still be a fortune dorson even though they're absolutely the identity if you didn't have the authority to do it right is sought and so the attorney and tifton bank didn't have the authority of the client to do it correct and so the bank was liable even though they had no reason to know that the reason that those cases are out there is not because that they were rogue cases and that was always the law this u c c argument again is limited to the situations that they lay out a holder anon holder or someone well what i asked mr holly the question another point but i'll ask it to you here what is the best case in a trustee scenario not only from georgia from anywhere in the country dealing with the u c c that says something an investigation when they've see a check like that to determine whether she can sign at as trust you still have a case correct ok which means the bank has no obligation to conduct an investigation they have an obligation to act commercially raise morning good faith which means that the stability in the commercial version a lot when i am an old man when i went to law school they called the bills a nose it came out of the common law came out of england and the law had to be very rigid otherwise you could have commercial transactions so they had a lot of rules that say be pretty harsh and that's what the u c c got the same thing with it's just bills and notes by statute correct ok so you want to do  you're going to check the check was requested from fidelity yes on a fidelity account yes and it was written by voice or bank or some other bank i forget the how to correct it right correct so but it was from