reasonable jurists could differ notwithstanding the fact that this court has ruled on that question and we concede fully that it's binding precedent but that present it is not binding on the new york court of appeals which for practical purposes is the final  of such issues the second question is whether to facilitate in one of three ways on bank reconsideration of the article three injury in fact ruling in roger mean which i contend simply misconceived the notion of an injury in fact and in fact incorporates the notion of legal injury rather than factual injury and you understand of course our panel is bound by russia absolutely we have conceded that you are bound we have argued quite candidly that we just think it's wrong and offered three ways of addressing the fact that panel is bound the first way which is admittedly unusual but is what is used in the d c circuit on occasion is so called iran's footnote where you if you agree with me that the decision on article three was mistaken you draft a footnote circulated to the full this is that on occasion when judges agree that earlier precedent perhaps was misguided or missed again they comment on that but nonetheless follow it as they are obliged to do for present reasons but the comment itself at least facilitates the possibility of  view once a petition has been filed vs voidable issue for new york affects standing in russian it affects prudential standing rather than article three standing and that is because potential standing for turns on the notion of you are seeking to enforce someone else's rights and that is only someone else's rights if it is void a bowl at the insistence of the beneficiary if it is void as to everyone you are forcing your own rights and i think the over case in california which did not reach the the merits of whether it was void avoidable but discussed the paradigm of why you would have standing to challenge something that was void but not something that was voidable i think is an extremely well written articulation of how avoid contract anyone can seek to challenge was avoidable one only the intended beneficiaries perhaps or the parties could seek to challenge and our contention admittedly depended upon state law is that this is a void contract not merely avoidable contract and so just to get the procedural context correctly there's a similar case called yes absolutely and another panel of our court came down it's binding precedent i don't think the trans court application of binding precedent necessarily means they endorsed the reasoning of rajam and it merely means they did what courts normally do which is apply precedent so to suggest that six members agree question it's actually not that i don't request this is an important question of state law it affects context throughout the country and in multiple courts it involves issues of public policy it is country at least to the facial plain meaning of the it and so it was misinterpreted potentially and unclear fair enough like i said i apologize for not having more of the details at hand even though roger is relatively recent i mean in some ways to my mind that makes it a little bit easier to send it up to the new york court of appeals my fear is that this issue will go away simply because everyone will just apply rajan rajan rajan mean and it will never get to the new york court of appeals in any other procedure  they agree that roger me was rightly decided this is virtually costless you send it over you say would you answer this question they say no end of discussion and then that's that's that for us on the state law question so is your principal still glass case from said that without any reasoning whatsoever so i mean if you go on well that's certainly my contention but i don't deny that other courts are following it look at argument look at a bunch of lower case and say sure but i don't think in a single one of those cases and i think on the logic of it i have a very persuasive argument to make to the new york court of appeals at the end of the some of my argument depends on judicial policy and public policy questions that are really fully within their discretion to rule on and i merely i'm that we should get into here but the problem is we don't send it to them essentially what we do is we ask them and they are reticent just say no ok well look if they don't it's not a summary  discussion of the marriage it's they've asked us should we respond before even if there is some some some pressure to say yes to this court out of respect carla respect i think this is a question that applies all around the country that it's affecting numerous cases you've seen in the briefs and that it's only right that for such an important issue that affects so many contracts that are identical that the final arbiter would have a say that you have three minutes from battle thank you very much thank you mr garb other defendant trustees judge carney you're correct that this issue was raised in tran but not only was it reason trend it was also a petition for a rehearing on bonk in tran and that was denied by this court appellants to be right and prevail here fifteen judges on this court have to be wrong in the well but two of them are on this panel right now there's been five decisions after rajam and that have examined the reasoning of rajam and have agreed with it in the mccarty case judge sack you agreed with rajam and after an analysis and that decision in the new g case judge ronnie you agreed with roger min after analysis of that decision as you pointed out the new t case also examined glass rejected lasky as have fourteen other california court of appeal decision frankly there's really no discord about the correctness of the rajam an opinion if you you know key cited less law no other decisions are disagreeing with it if there it was so incorrect you would think that other judges on this court would have found some reason to criticize it according to a college there's plenty of ways that a judge in this court can express dissatisfaction with a prior opinion and yet affirm it none of that happened there wasn't a footnote there was a referral to  none of that happened the reasoning is that it's a solid decision based upon prior new york precedent court of appeals decisions and frankly it's based on pretty simple precepts of law it's an interpretation of a  it's the simple point that if you're not a party to a contract you don't have standing to challenge it and it's another trust like point that says if you're not a beneficiary of a trust you don't have standing to challenge the trustees conduct the reason for that is that if as right are obviously we think that the facts are such in the allegations or such that they were not harmed and the reason is that they made big took out a mortgage they obligate in themselves to pay a loan they defaulted on that loan some of them were foreclosed upon some of them are still in in limbo they made payments and they claim that they were paying the wrong part and we submit that it's pretty  through this in great detail to a lengthy decision as i'm sure you're aware examining the various different theories that the plaintiffs in the rajma case put forward and it's the three theories that i'm covering right now it was a contract theory it was a trust theory and then there was this theory of well you don't own my loan which has basically been rejected by almost every court in the country said the concepts of the state law concepts well let me back up for a second there's a constitutional issue which obviously does not need to be referred to any other court this court has the power to hear that the new york city court of appeals has nothing to say to this court about how to interpret appellate division cases in new york have agreed with the analysis of raja and as i said before not a single case has criticised it i'll say one point here that i think  to be addressed there's an analogy to a mobster intercepting rent between a tenant and the landlord and frankly that's insulting to the trustees but it's also it also proves the point that it's  therefore some subsequent recreation really doesn't matter and therefore we're not like a mobster stealing someone else's rent before it gets to the landlord we're entitled to those payments the second point is if the mobster stoled attendants rent before it got to the landlord the landlord would come looking for that rent it doesn't expunge the debt here plain just fail to allege that anyone other than us ever came to them looking for the money and in fact they admit that in their brief they don't assert that they've made double payments they don't search that someone else has come to looking for they are looking for their rent or in this case their mortgage payment and therefore there is no injury they paid someone the trustees were entitled to those payments so just a few points fifteen judges of this court have not agreed with roger and they've applied a project in as president as is perfectly normal i don't know if any of those cases those judges were asked to reconsider rajon or rule them you have denied rehearing on bach but i think as this panel knows and as anyone who seeks certain knows that i'll be here in a box not presidential it doesn't speak to the merits of a case it speaks to all kinds of things including the existence of alternative reasons for the same result that would stop you from reaching the relevant question and that by the way is true of many other cases that this arises in where there are lots of reasons why those cases lose they may never get to full appellate review the second point is this is not a contract case this isn't a state's and trust case our argument is that trust law is different than contract law and that's an argument we would make the new york court of appeals and i think they would find it persuasive that's all we're asking is to get the opportunity to do that on whether we're heard going to the article freestanding question i think it misc there is a question of how much were damaged i don't think there's any debate that that  injured they were their houses were foreclosed upon the fact that it might have happened anyway through another mechanism i e through the originator and default on their loan payments right that's right but speculating on what would have happened thereafter whether the loans would have been restructured whether that's just speculation and we say this in our brief is our speculation but the injury in fact is what did happen not what might have happened or what might have happened in an alternative scenario what did happen is they paid money to someone  trial we have no evidence on that but it is an evidentiary question it is not a standing question the stand the only evidence for standing with much looking calling and calling yourself with justice souter on the panel circuit justice said they took her house she was injured whether or not it was a legal injury in the sense of they had a right to take her house so it's ok is not the question for article three purposes it may be a question on the merits it may be a question as to damages but remember we're bringing a rico claim the argument is that they  so that would be my argument as to why this just misconceived the very limited article freberg obviously my clients are interested enough to want to litigate this and that's the point of the article three you need to have an actual injury it's not like i