instead of the incredible long preface to it but at at page fifty seven is the party's joint case management order question three asks what is this case about it's for it's what it is a suit on two promis we shouldn't be here but should be in front of the sabah court and i should have been in front of the united states district court the southern district texas where he's been in state for just ma'am and what was your defense in state court of well i was not trial counsel but i can tell you that the defenses were multiple and that i think is one of the things that's gotten lost here there were about five or six different defenses of which holder in due course was only one of them at that the trial counsel a time attacked both at the davids made an argument that and i don't know how to correctly pronounce this word but i see it all the time that the deal why the indorsement document that transferred the notes from the created a unique problem that i don't think the district court was able to deal with if you look at the case was that dominates this area grable my distinguished had a survey cited to na those were removal case where would it happened was that the the plaintiff in the defendant got in there in the defendant actually raised the defense in this case contrary to what the district judge said in mccown we didn't dispute anything and we didn't other than jurisdiction because we don't have to so what happened was we miss case got non scented and then got refiled in federal court it that i don't believe everyone was prepared to deal with because if we look at this what we're talking about here is is to or warrant or to or to federal question jurisdiction or branch we all know that branch one was created eight hundred seventy five as the federal government was trying to figure out a way to deal with the american south bridge to comes to us from homes in smith but bridge too doesn't get you outside of the and here was the problem here is when they just filed all that we had was there will pled complaint and they're well put complaint and we will argue this and i will and i'll point this value to collect on the notes without being subject to the personal defenses of rogers and to be able to market the notes with h d c status requires a binding of federal holder and due course in paper planes capital my goodness your honors were not only dealing with an anticipated defense now you've got a defense to a defense and i would respectfully submit to this court that that's not what it doesn't help plants cap it back number one if this was so necessary to this lawsuit why was it never raised in state court docket number forty nine is a copy of roes rayna order denying summary judgment it lists everything that she considered what is noticeably missing from there that is allowed under texas civil procedure is a reply to the response to summ judgment ok you have to do that within three days of the hearing with the data submission if this was such a necessary element of this claim why don't we have a reply that says you are looking at section  of the last time i looked article six sixty two of the united states constitution says that the constitution lost in treaties of the united states of the supreme law of the land which begs the question of if it's the supreme  person who is entitled to enforce it when loss of possession occurred to the loss of possession was not the result of transfer by the person and three the person who cannot reasonably obtain possession of the informant i have no problem with  that until you get back to the state board well here's the thing if i have to go back to state court with all due respect your honor first of all we all know trials and lawsuits are like little wars planes captain chose the don't then it's going to be back i mean suppose we suppose we dismiss this the case is dismissed for lack of materialistic you're saying planes capital is barred from selling trees again no ma'am they may not be barred they are not they are not barred from filing a lawsuit but i'm not altogether certain as i stand before you that the way that this case on folded that by the time we get back there therefore your promissory note may be barred by limitations and once again i didn't create that problem neither did prior counsel that problem was created when planes capital bank let's face it they didn't lose the war in texas statistically two percent of all separate judgments are granted that means ninety eight percent of the time we lose those you know you hitch up your pants you look at what they said and you drive on and so they still had a lawsuit and plus they had a map that told them and and part of the no splat out that was not that you're correct i'm so so so what i'm saying is is that if you ask my defense your honor i did one of them might be limitations the other one up i would probably go back and one of the reasons that i wouldn't raise it is that i think that they probably are showing you know i'm not going to do something that's futile but at which which gets me back to something else i think that we have the ability this morning to do something that shows even more light on this we can take merrill dow which was the one thousand and six print court case that everybody pretty much thought had killed second branch federal question here look at griebel all right great it's got this thing about ok we have such a vision but look at how it was defended in the state court in the state court we had at least six defense if you juxtapose that with marilyn and this is probably the and i realize we're as we don't have a right to be offended but this was probably the thing that bothered me the most about this was that the district judge told me what my answer was going to be i just i thought that was absolutely passionately in fact a quote from his opinion because the defendant has not filed an answer we have no choice but to look at the prior pleadings ok so now what we have is it's the four corners of the players pleading all demented by pleadings in a case that's did you are from a policy standpoint i mean i didn't study for years the rules have got to mean something because i make decisions and when you basically tell me and and in this honorable court and the other appellate courts in the supreme court in congress create this arena we know here's what here's what i i didn't file and think because i didn't have to and i'll just tell you this and i think this is an important point lawsuits do not exist outside of the legal culture and realities of the place in which they are tried and to say that he double counting is parochial would be an understatement and i believe and i have no proof of this but since we want stuff that's not in the brief i'm going to give it to you i believe that what happened here was the despair will judge look at what the state court judge had done and was afraid that if this case goes back to state court that my client would win and what i maintain sorry but we've worked with i reviewed judge crane's opinions a lot longer than i can imagine and  i do not think that the federal judges down there shade their their view of the law according to what we all know goes on in your county and respectfully rahner a while i will not disagree with your analysis of all of his opinions i also practice a lot down know i'm not i'm just trying to say that if we look at if we look at the factual stuff that underlies what's going on because i had a hard time trying to understand what was happening well i mean that we don't have to cycle in life the situation i have a legal argument i agree and my legal argument is that irrespective of what his reasoning yeah that's my question to we you shouldn't it's not on appeal so you know we'll talk about that you know the summary judgment in the state leading none of that is before us in the well completed complaint so what in the district court seem to look at that well the the district court looked at the well put a complaint which says federal holder in due course all over as both an element of our  and we also mention it as doing away with some of their defenses we also specifically mentioned in our complaint that they denied that they reject that we also file their summary judg just in finding subject matter jurisdiction a federal district court can look to force the complaint you can also look to fifteen which is cited in our in our brief in terming sort of manager sticks in the court can look at the complaint alone the complaint supplemented by undisputed facts evidence in the record and the complaint supplemented by undisputed facts plus the court's resolution of disputed facts so none of those things say dead state court cases why i think their position they never came back and said that we don't think that our state court reads the well for the complaint will it says welp pleated complaint rule says you have to if you're if you're if you're raising a federal question jurisdictional matter you have to have a federal claim or the  relief relies on a substantial federal question so that gets us to grable so you don't you don't have to have a credible claim to have federal subject matter addressed to actually do you can see that you don't have a federal claim have a federal claim but instead you are relying on grable i i can see we don't have a federal cause of action and we are relying on gravel yes you think i'm i didn't get the first part of that before state law under state taxes u c c law we don't have a claim because we're going to hold in due course because first national bank the defaulting bank destroy all of the notes were there statute that state statute got amended don't you have i mean you have a cause of action under texas law to collect on these notes i respectfully disagree it was amended to say that the f b i see may have had a cause of action but there has to be a link between if you get to section and was with the justice jones was referencing three point three zero nine it says that a person who is not possession of the instrument which were not isn't time to enforce the instrument unless the person either was entitled to enforce the instrument when the loss of possession occurred which that's not us we didn't have the instrument when it was  acquired ownership of the instrument from a party who was entitled to enforce the instrument when the loss of possession occurred and so that would have been the f d i c so we're we're just one link away it is a technicality granted but it is a technicality that bet opposing counsel will stand and shout about all day long in state court that we do not have a federal or we do not have state law in due course that is because we are one legal way in that chain of title which thought i thought about this in prepared for all argument we don't have this in our briefing and so i wanted to present this to the court this case is very similar to gravel and  three specific ways first of all both involve title to property now grable dealt with real property and it was a state law quite titles line as state law as you can get it right this is state law lawsuit they weren't sued but they were involved in the transaction in this case the f d i c is doing the exact same thing they're taking the asset in the defaulting bank and they're giving it to us so they are intermittently involved in this transaction there and so the ip i see ensures banks they come in and they help defaulting banks to make sure those assets and those customers are taken care of and one of the ways they do that is by wrapping those up and selling it to another bank and so if the at the other bank doesn't have protections like that it will holder in due course like didn't do like section eight hundred twenty three then those assets are going to be worth much much less and that's the point the f b i see will get lunch much less money for these assets and so the f d i c will have to come out of pocket themselves to take care of the taxpayers to take care of the public and if in fact the  so there really want to answer this is not form shopping this wasn't what you do this is state court we didn't know the dollars were missing the other day i think ok and then i have a question about that so you didn't know the notes were missing so that's why you now believe that you pled we cannot take under state law we have to have federal holder in due course ok so if if it if it looks like you have two different theories in your district court pleading that's wrong and i don't have a passing the other one and then i don't understand your argument in response to believe judge teams questions about why you aren't in direct taker from the force it has directly or indirectly acquired ownership of the instrument from a person who is in time to enforce it i was taking indirectly through the f d i c yeah that's my question actually that was just king's quest and you said no they can't but it seems that they can't well you can if the amended three point one three point three zero nine it was amended prior prior it didn't even have to be it was you had to take it from the person so our you had to be the person that lost it and there was a case of forgot the name of the case that said that means if you're an ass ignore that you don't get in force it so then they came back and they mended it to write that case out  and so i think in this in this case it would favor the f b i see because they took from the party who had possession when it was lost and you took from that i'm in so indirectly you receive from f and b via c i don't know what the term indirect means in this context and i haven't seen a case that the find that our position has been that well we don't need to give away your case on a whirl argument here because what we're talking about is whether the will plead a complaint you know necessarily relied on a federal claim and the fact that there might be an alternate claim doesn't answer the first question correct your honor and we clearly in decision which obviously we won that but if you read through it it's a very well reasoned opinion it was not something that was fly by night it was a very well researched and very well written and so we would we obviously agreed with it judgment response because in to me i should there have been multiple commentators who have come out and said we don't like this element because a party can file the toby one without filing an answer so how is a district court supposed to know a defendant disagrees with had a state court case where they did file a summary judgment response they did file pleadings and they did contest this issue how is that an unfair factor if it's supposed to be within your complaint well we did say in our complaint that they disagreed with it so well i know i'm not i mean that we can't just rely on the parts of your complaint that say that you're anticipating the defense simming that we have to only look at the part of your complaint saying that you're a holder in due course is your status as a hol have to be able to enforce the notes as an element of our client that's what the question grudge against and as exactly right and it's necessary that it's also it also does away with some of their differences but that's not relevant that's not necessarily relevant but the fact that is an element of our clim any court hasn't asked me questions on it but i think it's clear that the f b i see and the ability to go in to a failed bank judge assets quickly wrap them up and sell them to another bank is in a very important probably only two or three cases in our entire history of texas tech or history and even discuss the merits of what federal holder in due course status means that's why this should be in a federal court because federal courts do look at these f had never sold his assets to us and they were here litigating this this would never be an issue so why after they give us the asset now you said it we can't litigate in federal court when it's the exact same federal issue and i think that is an important point of of why it's so important that that at a federal court look at it because the harm is if the court doesn't in a state court ignores it which has been my recent experience as i've cited to there's been a very recent case where the court of appeals reverse the trial court correctly did dench do with section eight hundred twenty three granted summary judgment for plains capital and the court of appeals reversed and didn't even write on it just to completely ignored this federal precedent in the federal statute that's why we want to federal court to look at it because federal courts tend to think federal law is important i tend to think that we should follow it the fact that it's common law doesn't matter it's still important thank you and also and also your time is up  risk when a nonissue did and then went into federal court and create a factual scenario that they were going to be able to basically make the will play complaint will work beyond that if the court has no question