good afternoon please the court great cross on behalf of us bank the district court made multiple errors in the decisions before you but i think that you can decide this case based upon just the clear language of the two contracts that are at issue the first is the mortgage on obligations only to the extent of such assignment now in the polling a certain servicing agreement between walkover and the other parties to the trust walkover assigned in section two point zero one it right to recover attorney's fees there's no mention in section two point zero one of the word obligations dexie a bargain for the right in the end of p s a to review and approve that very language in the pool in servicing agreement so they were obligations there's nothing unmistakably clear about two point zero one day that would say that the trust under took the obligation to pay attorney's fees the word isn't even there and it's not a fair reading of the point in servicing agreement to impart obligations and to wri six different places in the pooling and service agreement the words rights and obligations are both used you see you don't you don't have you're not arguing that mccovey is the one who retained the obligation just that the obligation kind of disappeared the right the transaction in order for walk over to undertaking incur an obligation and it makes sense in the context of the document because when the p s a said rights and obligations it said it six times and it didn't it didn't just say rights and it always inferred obligations but more importantly dexie was asked at the during the hearing below what is your best example that obligations is included in rights and council said well the obligations of the m r p a require notice to be delivered their time periods with respect to the repurchase if you include just rights and rights doesn't include those obligations then the trust is getting all the benefit without the burdens but if you look at the p s a and said two point zero three it expressly restates all the obligations for me  now that would be completely improper if there were rights used into a war already included obligations why would you do that flew a spit not improper right i mean there are these are complicated lengthy documents and many of your several parties  here what's your position with regard to whether the the bank retained an obligation to recover its attorney's fees with the trusted by virtue of the assigned first definitely retain the right and that's it and that's the way the documents works if you if you survey while the case in two thousand and fourteen was decided by judgment when she said it only been rights and obligations she was really addressing this particular issue was time you knew you were seeking a recut to recover her question her the focuses on the word interest in the construction of section eighteen and the p s a section two point zero one a to gether and it looks like i think i agree that it's garble that there is a  it would be inconsistent with with the way these documents read it you survey all the cases out there there's never been a c and b s case that had a reverse obligation that's not the way these documents work it's written this way intentionally dexia had the opportunity to review these documents that should be construed against them you know even in two thousand and fourteen judge sheindlin had it right there was there was no finding of a coach in or compelling reason to abandon that decision there was no change of law there were no facts there was no manifest injustice we did anyone forward to talk about intent that was on the rear view mirror i briefed law of the case because law the case was controlling the judge did not meet the standard to ignore law of the case and i never had a chance to come forward with evidence which was shown conclusively that's what this document is intended intended to do it was wrong for the district tour court to impugn just its theory of what the parties intended nobody argued ambiguity below there was no competent evidence before the trial court my adversary held forth without any doubt any evidence whatsoever with respect to what the document would mean but that had no evidentiary support and when i tried to rebut it i was shut down that's not the way this is supposed to go that's a clear reading case and on a clear reading if you're if the new york standard is manifest a manifest expression of an obligation that certainly is not here now the judge also erred because he said it's a remedy what can't be remedy there is no new york case which is found in attorneys fees provision to be a remedy the cases that are cited to you talk about arbitration provisions and choice of all they do not talk about attorney's fees provisions and think about the ramifications of a decision that goes that way you would summarily in this case confer every contract in new york under new york law which use the words rights as conferring both rights and obligations because now it would be a remedy that would transfer over obligations or any part thereof and it says that the ass and he will only be liable for those things that are assigned that was what was agreed to between what kovi and dexia so that we have not improved our position because of you the contract i've just stepped into the rights that dexia freely granted it's also consistent with the nature of the this is a remick trust they don't pick up liabilities they don't and the five meaning a chance putting that in the record either that's totally consistent with the way these deals work but it's not your traditional cases that go off on remedy when they talk about arbitration and choice of all they're saying you can circumvent that aspect of the contract by allowing the assignment to to not include those that's not true with attorney's fees provisions you won't find in new york case the only two cases they cite for attorney's fees being a remedy or one line out of a maryland case applying maryland wall and a california case that interpreted the statute this is critical california case interpreted a statute which had bilateral attorneys fees provision good afternoon move please the court can of shakhtar for dexia in my argument i'd like to focus on the text and the context of the agreement because i think that is really the key issue in this case i don't think the law of the case has any traction given especially that this court is itself equipped to answer the ultimate question of whether judge sheindlin was right or whether judging them are myra's right leave aside the judge sheindlin that was answering completely different question so a lot of the case  sixteen was transformed into a one way provision for the benefit of the trust only and if we look at section sixteen that becomes entirely apparent section sorry section eighteen which is the assignment provision the m l provides that assignment the trust will succeed to the rights and obligations of walkover that is in section eight hundred that's what defines what the what the parties intended could happen what section eighteen does not say conspicuously does not say is that dexie is right dexie is remedy in the event of litigation to recover attorney's fees if it prevailed were being extinguished by an assignment you would think if that type of significant change was big was going to be made by way of assignment that the agreement would say by the way dexie just so you know if we make an assignment we can wipe out your attorney's fee recovery rights  in our view and judging them are agreed with us the attorneys fees provision is not an obligation an obligation is a contractual cup and i have to pay money i have an obligation to send you something it is a part of a remedial provision very similar to an arbitration clause and just as a party cannot wipe you have no law to regularly support not no we don't not in new york we don't the issue is not come up and if we did course we have sided so the issue hasn't come up but but in my mind it is very similar to procedural issues like choice of law choice of venue arbitration clauses note of those can be transformed by an assignment if they could there would be an awful lot of mischief with assignments being made to to avoid those obligations so would you address your adversary's argument that the pulling in service agreement contains some explicit assignments of obligations to assign all right title and interest of the of the depositor in and under the loans and the rights under the supreme and so clearly the drafting wasn't was not very precise but if you look at what these obligate as that were assigned work i think this is critically important that the there are numerated in section two point zero one and let me focus on a few of these to explain why i think this argument has absolutely purchaser it's a couple of walk coviello so that was one of the a numerated provisions that was assigned that's all section ten is it's a covenant that says the purchaser will deliver copies of the prospectus supplement on the offering memorandum to dexia that's all it says that's the covenant so if that was one of the things that was assigned there is no right there's nothing good about that provision for the trust that was only an obligation of walkover to dexia and that was a sign so the idea that this assignment somehow we did our obligations and rights and separate them really doesn't make any sense another provision in here is a an amendment provision section one thousand that was also assigned is the trust actually saying that even though the amendment says provision says amendments are effective only if in writing standard provision boilerplate provision is to trust saying that it did not assume the obligation to amend only in writing that would be ridiculous and yet that is the consequence of its argument i saying that somehow it sloughed off anything that it finds inconvenient or problematic and only assumed the good parts of this and and that just doesn't make any sense and it particularly doesn't make any sense in the context of this transaction which jug judge angle meyer took some time to talk to think about remember that in this this transaction involves essentially a simultaneous transaction where october first and the pulling service of the closing takes place october thirty first and if i said october first october thirty first so we have a thirty day period but what what what dispute could possibly arise in the thirty day  period that would trigger an attorney for the obligation on the part of walk for example the main thing that the trust sites is the possibility that there could be a defective loan that was transact in the and what you could give notice that well the the m o p a says you have to give  ninety days notice a ninety day opportunity to cure any defective loan you can cure it you can put in a substitute it with a different loan or you can pay back the money you have ninety days to do that so nothing can happen in thirty days let alone in thirty days leading to one party prevailing getting attorneys fees award so that is not that makes no sense it really is not a realistic possibility that anything could happen within thirty days that would trigger either dexie or walkover would have the right to attorneys fees it just takes too long for this process to unfold so we simply don't think that makes any sense and again the the the the trust had a limited life span and and rather than what you had a limited role in a limited lifespan it's only raised on d'tre was really to to affect this transaction briefly mr cross didn't address it let me talk briefly about the issue of offset because that's one of the another argument that has been made the trust argues that there should be an offset for the recovery in the settlement of this litigation that texaco brought against its former  counsel we don't think there are any off that would be appropriate for two main reasons number one the agreement doesn't say anything about an offset and some agreements do this one doesn't and new york law is pretty clear on this point new york law does not permit an offset to an attorney's field warrant based on the collateral recovery from another party insurance company being the classic example so if an insurance industry of that there was only sixty four thousand dollars difference as to which you know that that  right that's up to the sixty four thousand dollars is the net recovery so dexia recovered a little over a million dollars in the settlement but it didn't come cheap it didn't come free it had a little gate for three years to get it at a cost in about  million dollars in litigation cost to get that one point one million dollars recovery of that net recovery is that sixty five thousand dollars so in our view and judging on myer agreed in a footnote i believe you said he doesn't think any offset is or is permitted or appropriate but if there was to be any offset at all it would be limited to that small network coverage and we we certainly agree with that so unless the court has any other questions in food by asking the court to affirm the judgment thank tunes i want to be very clear about this because my adversary ignored the provision again as did judging from our section two point zero three is the controlling provision that i was talking about that restates the obligations is not two point zero one and if you read two point zero three you'll see that it's a complete restatement of the material obligations under the and that's critical so if in two point zero one rights and obligations were being transferred there be no reason reason for those lengthy provisions to be restated in the in the p s there's a built in sense and suspenders not something to be back handed and dismissed here that's not all the testimony you've got about what the parties expectations were and what you just surmised with respect to perhaps it's this way i was deprived the opportunity to put that in the record because i can bring in any industry expert and they're going to tell you that that's not the case it's there for a reason because it's only the rights into your question if you look at section eighteen with respect interest it talks about the assignments as may be required to effectuate the purposes of the pooling and servicing agreement  to the point and servicing agreement is the controlling document that's what's driving the transaction not the end of p s a and dexia barking for the right to review that language now they certainly new york law is crystal clear you have to unequivocal say you're assuming the obligations it's not here that's on dexia they know what new york law was and they reviewed the document and you need to be very careful about this case it breaks grounds in no less than six ways i wrote that down so i would not forget it was this would be the first case that imposes an obligation to pay without a statement of an unequivocal that obligations have been assumed in new york this could be the first new york case to ever interpret the word right to mean rights and obligations in the context of an assignment this would be the first case in new york to ever characterize an attorney's fees provision is a remedy never has occurred this would be the first case in new york to impose a bilateral obligation to pay attorney's fees in a c and b s case you can review them there are none because that's not what happens this is the first case that would disregard making findings relative to whether mauled the case should be followed on just the discretion and the whim of the trial judge because it's about one sentence is what it gets out of the opinion and it would be the first case that's allowed a windfall with respect to the recovery of attorney's fees this isn't an insurance case we're not seeking the seven thousand dollars they were paid from lloyd's were seeking the one point five million dollars that they were specifically paid in settlement of the malpractise case to compensate them for the attorney's fees incurred in this case because had i been successful in front of you a year ago they would have received four point two million dollars but that four point two million dollars settlement was reduced to one point five million dollars because it was intended to compensate them for the internal fees that they incurred in this case and that is not a collateral source that they independently contracted for that's a source and to separate