no evidence again as to whether or not this is a real trust not a real trust and on a corporate you are acquainted with that will be one motion the the fan that can request jurisdictional discovery to establish the existence or nonexistence of any jurisdiction facts you didn't do that that's correct ok so why is it if we take a look at the word trustee and we take a look at black's dictionary as  trustee and what a trustee is goes back to the th century and says the trustee is a person who owns legal title for the benefit of beneficiaries who hold equitable  title then you take a look at federal rules of procedure seventeen a one i think it's easy and says a person can sue for the benefit of someone else who is the trustee of an express trust why is not the allegation that bank of the bank of new york mellon is a trustee for the certificate holders sufficient under rule eight to satisfy as if we take the allegations of the complaint as true as we must that this is a trust as is known in england in the united states since the th century understand your position sir and i also understand however though there are myriad different forms of trust so i understand if if the plaintiff was so in adroit as to plea himself out of the case by describing his trust which is other than what he described you'd have a very good case as did the american case but here there is no such thing  part of the problem too is that in a lot of these cases we've had just the banks being named and more in can if you will with the trustee relationship where their vested with title and so forth and then we've had certain cases where the party has been necessarily named as merely a trustee for certificate holders in a different kind of at least from a different title in point of view and that they were given gave rise if you will to some inquiry as to whether or not it was treated differently as and this court's ruling on the case we would look at is obviously structured the same fashion so i respect that i'm a little bit confused here because i thought you did seek twelve b one discovery about their trust and whether there was jurisdiction and it was denied by the district court i thought you had attempted to challenge this and the district didn't like you am i wrong about that i don't i think that's an e r fifteen  i thought that the ar fifteen that we had a whole order in which the district court was saying that you couldn't pursue these questions about what kind of trust oh yes you're right that is true i mean from what you're saying that yes indeed order the judge basically said i find this and  what i thought that was it wasn't that enrich the time you made some request why did the judge do that if you hadn't been trying to challenge this or are learn more about the status of the trust there were two motions if if the courts are aware at that time from the joy as well on this issue i can't hear you very well i'm sorry there were there were other there was another motion under underlying this as well with the h way and challenge the jurisdictional aspect as well and so there was that there was a whole are you saying that there that the h l a requested jurisdictional discovery i can't tell you that for certain you know i would not i don't i would not commit to that but it's just interesting to me that your answers to judge beo were basically conceding that we could just take the allegations in the complaint as true it seems like are you are you abandoning the effort to challenge the jurisdiction no of course i don't think i apologize i don't think i was abandoning or giving up the right i was general propositions about trustees being able to sue provided this is not a typical trustee relationship and you think there's enough chance of that that it's worth reminding for further work on that question i think it's a question that's open that could be thank you very much thank you as far as the underlying allegations of the complaint i'm sorry the underlying decision of the court there were there were several issues and this is the issue were the not there was this was a check and a case where there was an attempt to tend to it was a rejection we believe there are factual allegations that could be developed in that case that were allowed to be developed not case that there were conditions that were unique to these particular parties that they would not not have accepted but there were problems with the mad men era which it was presented so i think there are a factual determination there would require remained on this case and addition to the jurisdictional issue there was no disclosure of the tender that case basically defines what the conditional letter is of the miles power letters that have been replete throughout these cases the unique thing is this is this is a actually a law firm who is doing the collection efforts so there's a more intelligent response process between the parties in terms of what the objections were the current s f our case you're referring to actually is looking at the letter i believe taking the generic terms of the letter and saying they're not objectionable and i think that's why that case is somewhat problematic because again the responses if we're going to look at these letters is not as generic item and make them apply uniformly across the board but we look at the facts between the parties if a party wanted was willing to accept the funds however they don't like some of the conditional language that's easily resolvable in the question we are applying nevada law and you're asking us to disagree with the nevada supreme court no no no no  explain to me again why it's distinguishable but difficult case it's difficult because the miles by our letters or can't letters for the most part they've had some variations over the years i mean i've been doing these cases since two thousand and ten and they had some somewhat and the bank does nothing further at that point but there is there's generally a dialogue just of decision for example it doesn't as if our tell us that all they need to do is offer you the money and that's what they did unconditional payment of an immediate payment to tender the case that we didn't have to meet maintain the tender is good the bank had no recording requirements but there are issues that extend beyond that letter to suggest whether or not the h away from a seller who has actual knowledge and the seller here in this case is the to itself so the issue itself knows whether an attendance been made and it could have an adverse effect on the ultimate value of the property of the use of the property and that's one of the duties that we  see is being due it's not going to dress by the investment court i have a number of cases going through the system on that issue currently so it is a safety it's a fluid issue whether this case is completely dispositive i think it says what it says as to all the matters in it analyzed this was before obviously the democrats case but i analyzed them i recalled and concluded that as this court leader didn't demorest the traditional rule that the citizenship of the trustee is what matters if you're dealing with a traditional trust was not disturbed the court further held and i'd like to emphasize this part of it quote even if the court did need to legal title to the trust assets and so that would read it again slowly b m y mellon alleges that it has legal title to the trust assets then that's an allegation and this was well st of all i think or a summary judgment and nd of all as i understand it someone had requested discovery in the district court was denying it and i think that is not my understanding so how do we end up with those orders so how do we end up with this ruling on whether there was jurisdiction given the status of the trust because the i think what the district court was emphasizing here was that the assignment of the mortgage that transfers the interest is in the name of the trustee it's to the trustee it's not to the trust but someone had argue structured starting on page fifteen and i think that's part of part of the court's analysis here it should keep in mind that there was full discovery in this case and there was summary judgment summary judgment is the time to raise these arguments or file for relief under rule five thousand and sixty that did not happen here so you're saying they did challenge jurisdiction but without actually seeking discovery that would have been relevant to the jurisdictional question of what kind of trust this was yes yes your honor they had an ample opportunity at discovery here in the way that the scheduling of cases works of the district of nevada often there's a motion to dismiss that takes some time to resolve and meanwhile the parties typically engage in discovery anyway and so there was a full opportunity for the point of here and shows essentially the same analysis that this court did undertaken to marston and to marist i think one of the things i was candidly present in the record in that case that's missing in this case was the trustee agreement the agreement that sets forth the scope of duties of the and under the trust that's really the only meaningful difference and i think that this record sufficiently determined that this was a traditional trust not only because of suit in its own name but because the deed of trust was assigned to it and so as a practical matter there's not a whole lot more that the court can determine from from further factual analysis then it already did it would simply i think the only thing that would be out there would be a review of the trust agreement which would confirm what we already see in the record which is that as the bank claimed in the complaint it appears it holds the the the paper in other words the note the deed of trust it manages it in the disposes of that through foreclosure or otherwise and that's all sufficiently before the court and i think at a more high level of analysis the american decision not only did not expand the pleading requirements to establish on the face of the complaint that there is federal jurisdiction that we don't read it as also expanding the pontiff proof or the quantum of evidence that has to be presented in a case as to to satisfy jurisdiction certainly there are variations in state law and i think what the court was concerned was that the supreme court was concerned with was that there are some cases where under state energies that are called with the label of a trust but aren't really functioning as a trust because the members and in those entities actually have managerial control actually have participating interests and in contrast to a traditional trust such as the one we have here it's all done through the trustee and i think that's the distinction that america was was emphasizing here and i think one of the questions had to do with whether there are any cases in which a mortgage trust in a securitization has ever been held  anything other than the traditional trust and we've looked at this and we haven't found any there are in fact many many cases at this in the in the district courts as well as the the two cases cited in demaris one from the from the d c circuit one from the  circuit that all come out the other way and so the concern we have with remaining the case is that it would really open a new area of of practice where plaintiffs would be required to show a lot more in this context then is really contemplated by americal but but you're saying that i mean how would it be a lot more if you're right that this kind of trust is always a traditional trust that seems like if it's true as a matter of law it would be easy to show i to get some kind of relief from the contractual obligation those cases have all been pled with the professional understanding that the trustee is it is the one party the who citizenship you look hundred properties where as whether they really expect to find anything there and i think as a practical matter when we consider judicial resources it's simply not necessary because the court had enough here in this case and with the court review the factual determination i think it's certainly w court's discretion to find that it was more likely than not that this was a traditional crust can you tell what the court base that on again all we have is what the court wrote on page nineteen of the excerpts of record and that is was there briefing on how in every state this kind of trust is really a traditional trust there was i don't know if that was expressly said in that manner but essentially yes the the briefing both in the middle of the briefing before the district  focused on whether america old ushered in a new way of looking at this and within that the argument that we presented was look under america this is not anything other than a traditional trust and here's why and we explain that among other things crusty continues to basically make all the decisions all the decisions on behalf of the end of the beneficiaries of the trust and so but you were just asserting that as a lawyer rather than having evidence of it i mean how how w the record is that shown once again your honor the principal place in the record were that shown as in the end the assignment of the mortgage the assignment of a mortgage the assignment of the mortgage the assignment of the mortgage that gives legal title to the basically the  on the jurisdictional issue that's a fact so how i mean they they alleged that they were acting as a trustee of a trust and you tried to challenge jurisdiction but without seeking discovery to show that they weren't a traditional trust so how how did you properly challenge jurisdiction at that point when we challenge it in the court denied the motion we didn't ask for discovery we challenge the jurisdiction we in them in that motion we didn't make a separate motion to discovery on the issue however i think it's instructive then why shouldn't we take the allegation in the complaint as efficient if it was never challenged actually well the judge basically rendered his own analysis and said that they what do we do now when we have to decide whether summary judgment is appropriate we didn't wave at least i don't think we waived it was never anybody's intention to waive we raised it in the motion the judge ruled upon it when he ruled upon it he basically made his own determination  analysis that it looks like a trust smells like a trust so there from when to call it a trust are you saying that's why you didn't seek discovery because the judge had already ruled as your honor knows the judge took it under advisement and the ruling came out and that was before and there was still more discovery after that in summary judgment or was all at once it was all at once your honor and just for the record it's time one valley was that was the focus if you will of what was going on in the federal court system so we didn't jurisdiction in this particular case was an element of our defense but one valley was getting a great deal of attention and focus at least that time right or wrong but one thing i did want to point out it says the court on page nineteen  goes you know in america old the court did not qualify the application of the viro based on the powers or attributes that the trustee possesses rather it reaffirms that simple rule that when the trustee files a lawsuit and or is sued in his her own name her citizenship is all that matters for diversity so he's making these determinations that basically because they filed the case it's enough they don't want to even if the court did not need to analyze mellons role as trustee bank york l is more likely not merely a nominal plaintiff because it has an impact on the stake in the controversy and then for those reasons he's determining straight up that it's a traditional trust and this isn't just based on to diversity so i mean that determination is in the order he runs to the analysis it's not as if these are questions of factor or otherwise he's making those determinations and i believe it's significantly more your honor than his alleged in the complaint and on that i appreciate