and so now we'll hear the case of cutler bay apartments versus the bank of america identical in this case this case is about two motions for summary judgment emotion and across motion bank of america a motion for summary judgment was granted there's motion was denied the motions are about a simple issue i will like to start by reading that because i think that the confusion in the lower court was based on not reading it correctly with what knowledge or wherever there is a nd basis for the truck for this record order a s judgment in favor of bank of america we have to prevail on both the nd basis is actually the loan application is not a contract there is not a contract in this case and therefore there are not obligations for bank of america enter into an agreement under which bank of america provides compensation to a broker who brought about the issuance of the loan application or the consideration of or making off the propos the answer is yes there is no dispute is not disputed by bank of america it was an even dispute it by the findings of the trial court cod was a turd party broker and sealed the enter into an agreement will call it a side deal because he was rose and or the side agreement and here is where the confusion is the answer to the question is yes the claim by seal the in fact a rose and they're the site deal to the extent a claim demand or created that liability against cutler but no liability was found against in the arbitration so we prevailed because you were wrong they suit you they won they prevailed their right what we did by winning is we reduced the exposure a bank of america with did the best we called and asked to the extent of and there's an argument it's a it's a very fine argument by counsel and the argument is lot but you have been sued for another amount just as well so why should you get the full amount or wissam it we showed but it's not any show now because we never moved for summary judgment as to the entire day we just moved us to summary judgment was there any contract between bank of america and c l d the only contract that we are aware of it's the side deal so the promise by bank of america to percent but for one percent double the amount was because bank of america had made them a promise but i mean this is understand your argument i'm asking because maybe i'm not understanding it you said the agency principal relationship between c old bank of america grew out of that agreement that agency relationship is irrelevant i think within not brief that properly and i want to clarify that yeah that's a surprise and i understand promise to cod to compensate them for five percent and then sealed the turnaround and sued my client tatler for that five percent that is all that is required for th nothing else in this provision that you just read to us you say that the that put a duty on the bank of america to cooperate with your client in this arbitration proceeding no i testified that they do not issue a commitment letters that is even though in the you're not traveling under contract language you're traveling under the good faith a very doing requirement connected to a contract language in other words the st page of the loan application says i am bank of america and is a loan will come to issue on but anyway i mean now you're seeking reimbursement based on the contract right correct ok i just don't see anywhere in the contract where it says we're going to you know cover you if you incur of america unless the loan issued so that is the nd basis of the finding by the magistrate and the order by the lower court there is a number of reasons why does is wrong this is wrong on the merits but it's also wrong procedurally procedurally because bank of america never presented that argument it was not an affirmative fence it was not in the motion for judgment on the pleadings that's one other question i had is is formation of a contract really an affirmative defense or is it just something that the party asserting the contract has to show in the st place it is and from a defense condition precedent for mission of a country is a specific a from a defense that needs to be fled and we decided to cases in support isn't forcible but it doesn't apply to the issue because the legal basis of seal these arbitration against your client was not a breach of the side deal but it was a breach of your agreement with bank of case then returned the consideration we paid we paid seventy thousand dollars and did this and if we take the later interpretation which is under this document bank of america is not a question whatsoever and there is no contract then consideration needs to be returned thank you will be happy to responsibility and in this case quite simply what we have is an alleged wrongdoer suing a party who's done nothing wrong to be compensated for defending against their alleged breach of a contract that the innocent party was not a party to that's not  something different and we have here is i think the court is recognize the fact we have two separate contracts we have an agreement or loan application between the appellant's and bank of america and then separate from that was the exclusive brokerage agreements that the appellant's entered into with c l d it was not a party to the brokerage agreement were not mentioned in it by the name didn't have any knowledge of so essentially what we have is the opponents are attempting to take the  from the loan applications and apply it to absolve themselves from the expenses they incurred in defending against their breach of the exclusivity clause that they signed with the broker c l d and that is not something that the bank had any knowledge of or ever would have agreed to indemnify them for and the reason being is because going back to the loan applications in this brokerage fees provision the indemnity provision which parts made a an incomplete reading of and i'd like to clarify that for just a moment because i think it makes a big difference in this case this indemnity for vision is a mutual indemnity provision and at the beginning it starts by saying the borrowers agreed to essentially to pay whatever fees they agreed to pay a broker and then in turn bank of america agreed to pay whatever fees it agreed to pay a brief i don't believe that we have the i don't believe we block quoted the whole thing and our answer brief judge but included the clause in there that the magistrate looked at and it said that essentially unless the loan closes no it doesn't have any obligations to lend or do anything you know under the agreement and so what we have here is this is essentially an agreement to evaluate whether or not we will approve and close a loan at a future date and there are provisions there are binding obligations on both parties in terms of the due diligence and underwriting tasks that take place to determine whether or not the bank is going to assume the risk and loan an amount i mean we're talking tens of millions of dollars so the bank there's an extensive amount of research the bank has to do so while testing zoning insurance requirements site inspections is this property you know sufficient collateral for this amount of  loan and those are the tests of the bank was undertaken and part of the problem that i think that arises in this case is that the exclusive brokerage agreement that the opponent signed with c l d did not include a carve out that allowed the to continue their discussions with bank united for the same fight refinancing we did include the carve out in our language and so that's why we're not making an issue of the fact that this this loan application terminated when they when the financing from ultimately from bank united so the carve out i think is the key here because the arbitration out of the exclusive brokerage agreement came from the fact that they circumvented cod and got the financing from bank united without that was the basis for the arbitration that was a breach of their exclusivity clause which provided for cods ability to recover double the amount of potential income losses so that is the basis that clause was the basis for the claim in the arbitration that had nothing to do with an agreement with bana and the fact that they saw it as part of their they they broke up their damages as we were going to get half a percent from you and half percent from bank of america but the only way that they could claim entitlement to the half a percent from bank of america was because that was potential income to them that never was earned because this long with vanna never closed so i don't know that they've made arguments to the fact that the loan didn't close is it is not something that stated or apply to the indemnification but it has to be because the only agreement that bank of america made t c l d the broker was to pay them half a point if this loan closed and it's undisputed that it never did and the reason it never did was because they didn't provide the opponents not provide all of the information that the bank needed to complete its due diligence and underwriting tasks which it was obligated to do under the loan applications and then obtain financing from bank united without using c l d so we didn't have any say we don't have any knowledge or earn involvement in their agreement with the broker and that's what that s was about we so our argument has all along been this loan didn't close and this indemnity clause does not apply to the situation you are seeking compensation for because it had nothing to do with our agreement to pay a finder's fee if the loan closed and it didn't so for us that's the end of the line and as far as our obligations go the loan didn't close we don't know anybody any money for this and that's going into the story we did there's no claim and there's no indication that the bank did not perform all of its due diligence did not use you know the deposits for the purposes that they were intended which was for consultants for all of those inspections and appraisals and things of that nature so you know we're kind of at a loss on this one but our stance is that we're not obligated to cover them for expenses that they incurred in defending against the breach of a completely separate contract and i think that's  thank you thank you is not tenable this finding a fact show that warranted summary judgment in my client's favor that is all that the court needed to find that there is an agreement between and bank of america the seal lease with my client and that the claim that sealed the made a rose out of the agreement with bank of america the magistrate judge made that finding and should have entered summary judgment in and they lost the last year be tradition they were wrong in claiming that my client did something wrong we were right and so the problem is that there was a balmy or my client said the bonnie was five percent and that that's an affirmative defense that they raised unlike the affirmative defense of failure a condition proceed in the construction of a contract and that's all i have to say thank you