first case which is robert gordon steve bank of america defective the new york state statute creates a statutory short form the parties who entered into the mortgage and used that statutory for short form they titled the powers of attorney both of them in this case  attorney new york statutory short form and in the words of my adversary they used the exact wording of the statutory form the statute says that every statutory short form durable power of attorney to be valid must be written typed or printed using letters which are of clear type of no less than twelve points in size and must contain in bold face the caution and directions contained in the statutory for it had of the district court of essential in the district court concluded that maybe those requirements are necessary for it to be treated as a statutory short form form of powers of attorney but it can be valid otherwise even with minor deviations from from the short form format yes the statute says that you can use another form the issue presented to the district court and here is when you title the document statutory short form and you use the exact text of the statutory short form but you fail to format as the statute requires have you used a different form or have you failed to properly use the statutory was it your position that this might be valid as long as the title had been removed if it didn't call itself a statutory short form but that would then be valid no your honor it also used exactly the same text as is contained in the statutory short why should that preclude it from being treated as  a correct manifestation of the party's intent to and dow an individual with the power of attorney certainly you can have intent to create a power of attorney but you actually have to go through and do that as is required by the  can't simply say because we intended to create a power of attorney we must have created when you actually have to go through all of the steps and you have to balance the statutory provisions in such a way as to give effect to the paragraph that says to be valid you must do this with the paragraph that says you can use another form and in finding that balance if you appear to be intending to use the statutory short form as was the case here they copied the text they put the title on it then you must go through all of the steps required by the statute in order to get the validity they didn't and that's why we're saying that the the power of attorneys are void and the mortgage is void and if you look at some of the cases handled in the  state courts where you can see that there is clear intent to endow a power take the marriott case take those cases somebody put an x in the space where it says to put your initials that's to me at least suggests that there is an intent to create that power yet the court said the directions say you must initial and every one of the courts that has looked at that issue has said where you've put in x instead of your initials the power is void and no authority is given to your initials in this case that's one of the issues judge if you look at our initials you're saying it's not there i'm saying if you look at it i can't tell what's there there's a squirrelly mess in one of them we can look at it i believe it's page twenty six and twenty nine in the appendix but i can't identify those as letters it's a mark you are entitled to fact finding that i mean i also agree with judge korman that on ga twenty nine it looked like the individual's initials and it didn't look like an ex it also looked like initials to me on twenty six but you're saying that there needs to be fact finding on that that's what we would expect is that because we can't identify them and we are alleging that they're not in your shoes we should get the opportunity to ask the be person rex a q did it can we have is this your initials one of those cases you relied on in one nine hundred twenty five case i believe dunton maybe suggest you highlighted that as a case that showed that failure to comply would render the whole with some certain technicalities would render the whole power of attorney invalid but in that case the there was no power identified here you know the function of the initials here is to identify which powers are conveyed and to affirmative intention to convey those powers it doesn't seem to me that there's any lack of clarity that would undercut the validity of this power of attorney because the signatory in this is acknowledged and otherwise validated shows exactly what powers were to be conveyed or you do rely heavily on dunton as i it yeah yeah it's certainly one of the cases that supports the position that was a situation where the principal knew that the mortgage was being entered into requested that the agent  court still invalidated it and the court got the got the the mortgage was was found to be not valid in that situation but they're there the document the court said the document states nothing to which the grant of powers can be related that's a fundamental issue unlike what we have here where the indication of the powers to be granted was very clearly indicated but yes you have somebody has put a mark in the box we can say it's initials we can say it's a squiggly mess that we can't identify the allegation is so if we mess clearly it is alongside the powers that should have been awarded in this situation and there's no dispute about that  this is your argument has to be the only argument that i can see here is that it's not plausible looking at that to say that it's an initial it's attached to the complaint we can say determine if we agree with you on that on that point or not but certainly that's your only argument with regard to those marks because you don't there are enough there are no other allegations in the complaint to suggest it was not the kims who made the mark who made those marks no we're not suggesting that anybody else did it it's either the kims or nobody and and it's a question of whether those are actually their initials or it's something that we can't deci the question is why would the legislature design a statutory form of a power of attorney for the public to use and then subjected to the condition that if you miss a comma everything that in the power of attorney may be voided all the transactions executed with it may be void and a third party that's not even a party to the documents may be able to attack them it's not logical it is not reasonable and it's also not supported by the text of the statute itself or the plaintiffs doesn't have any personal knowledge related to the formation of the power of attorney or the execution of the power of attorney it's not like the caymans who were the signatories to the agreement are contesting that they didn't put their initials there what you have is a power of attorney that is signed acknowledged and bears handwriting next to the enumerated powers i don't think that the point of the point if it was not part of the agreement well maybe that's not their initials that's not sufficient to state a claim doesn't state a plausible claim because they have no idea really we have to evaluate whether it's a plausible claim or not based on the presence or absence of personal knowledge certificate of conformity for an out of state acknowledgement is not a defect where the uniform all purpose certificated acknowledgement from section three zero nine i believe it was is used and if you look at the language from that uniform all purpose are typical of acknowledgment and i compare it to the language that was used in the acknowledgment on the power of attorney they're practically identical and the court in that case it was the first bank versus aagot case the court in that case said it needs to only substantially conform with that uniform all purpose certificate of acknowledgement so in this case notwithstanding the lack of a certificate of conformity it is still valid on a new york  law just briefly with respect to the issue regarding the placement of an x next to the initials of the cases that palin cited were cases where there was only an x placed in next to the enumerated powers and there were no initials in this case there was an expert there was also handwriting next to it which certainly appears to be the initials of the parties granting the power authority power of attorney so those are distinguishable cases and as palin's argument that he raised today regarding the the balance between the language of the statute requiring certain formalities and the statement in the statute power of attorney so if you take the statutory short form power of attorney and take one word out one now that is any other or different power of attorney and its you should not be barred the the and it's not as though they said well nothing in the statute shall bar the use of some particular prescribed other form of power of attorney just as the use of any other or different power of attorney so it is any different power of i may just one point on the balancing of the two statute the two provisions within the statute there is a third provision that recognizes that there are definitions that come in the following sections and you don't get the benefit of those definitions unless you have used the statutory short form as it's defined in the opening provision which is fifteen zero one fifteen zero two and later give you explanations of how the provisions work together the statute again is very specific and it says you must use the exact wording and it is valid or it is is it it is a short form power of attorney when but only when you have done what you're required to do in the beginning and this is a situation where in order to give any effect to the requirements of the statute you have to go with the position that if you follow the statutory form then the formattin requirements must mean something because if the position is that you don't have to do the formatting then you have affectively notified that paragraph of the statute by saying it's simply a different form is that a reasonable interpretation of the statute and valid power of attorney under new york law certainly that's a possibility but that's not the facts that we have here the facts that we have here are the folks who have afforded the power use the statutory text and they titled it with the statutory title so we are not in some different land where they've created from whole cloth a new power of attorney it has to be your position then that if you if you use the wrong type face in one word because are provisions as you rightly point out they go to typeface you just use the wrong type face in one word but in all other respects it complies with the statute is long as if it's titled short form it's an invalid power of attorney but i'm struggling to find a way to answer that question without saying that the legislature said to be valid you must do it this way it's not a question you did i don't think it's said to be valid it's said to be treated under this the statute me what it is fift says no financial institution located in this state shall refuse to honor a statutory short form power properly executed and so on and the failure to honor a properly executed statutory short form so it had to do with the obligations to as requiring balancing it doesn't say that any other document can't be valid as a power of attorney if it doesn't comply with this whether it's title statutory short form or not it's just this statutory short form and all of the typeface and other requirements had to do with the obligations related to that on financial institutions i don't i don't really understand what you're pointing to is as saying that the legislator language certainly every statutory short form durable power of attorney to be valid must be written typed or printed using letters which are legit in legible writing or of clear type of no less than twelve point in size or if in writing a reasonable equivalent thereof and must contain in boldface upper case and upper and lower case type or reasonable equivalent you can you can pause there i'm looking at that but that again is tied to to be a statutory short form durable power of attorney and that doesn't to my reading supersede the preceding paragraph that says no provision shall be construed to bar the use of any other different form if i'm struggling with how you can allow the preceding paragraph to nullify that language when a party chooses to use the statutory language and titles it the statutory form if you say that any other form is valid and therefore you don't have to pay any attention to the statutory formatting requirements then there's no meaning to them and they're just wasted words in the