may please the court many of his benjamin gould and i represent the appellant's three small businesses that will be calling the borrowers just as we do in our opening briefs a good portion of this appeal really just turns on application of the familiar summary judgment standard to events that occurred in january and may two thousand and seven i mean the question just simply is whether a reasonable fact finder view in the record in the light most favorable to us could reasonably conclude that the lender didn't receive regulatory approval to use the walk over cost of savings index with existing loans and i think that ted answer that question no in other words to get to where the district court got to  you've got to utterly discount three really powerful pieces of evidence the first piece of evidence is the letter from the o t s itself in january two thousand and seven which explicitly interpret the notice from the lender to be seeking approval as to existing loans and says nothing about new loans you've got to essentially believe that that statement is meaningless to to get to where the the district  got the second really powerful piece of evidence is the december two thousand and six letter from the lender itself and that really that letter you could say fails to do two things the first thing it fails to do is it fails to specify what index is going to be substituted for use with existing loans and then the second thing it fail it well i suppose the second thing it does is it affirmatively suggests that it's going to be   say would be irrelevant right because the regulations as as long as there is no objection they have it's deemed approved well but it's the o t s is non objection that counts i mean it can't be that the subjective intent of the regulated firm in submitting a letter is what control but that there was no i thought it was agreed that there was no objection from o t s to the letter so if the letter is correctly interpreted it is supplying to new and existing loans then it would be deemed approved under the reg well but not if the not if believed was that the letter to which it was responding was was seeking non objection as to only new loans because otherwise that would mean that a regulated firm  law it's deemed approved so if they were hiding the fact that they were they wrote existing alone and in like a different language or in say for subduing i can understand your point but if in fact that just record correctly read the letter is applying to both then it's deemed approved or under the regulation well let's let's talk about the december two thousand and six letter because i don't think the district court was right about that and you don't have to agree with me that the that the only plausible reading of the letter is that it was asking for approval as to new loans  only to reverse here one has to knowledge is that the letter can be reasonably read both ways and if you actually read the if you read the second paragraph under the heading of the introduction of i mean there's a letter doesn't actually specify what cost of savings index is going to be used in this index substitution process for existing loans and it doesn't actually say that and so i guess i just don't understand how as a matter of law it can only be read to to cover both new an existing loans so we're reviewing that district court and there is a little confusion i thought in the brief is this a legal issue or a factual issue but we generally determine that interpretation of writing is a matter of law so if you're reviewing it as opposed to the intent of the parties or the end or standing or factual issues well but i would we be reviewing this de novo the interpretation of that letter well i mean i would i is ambiguous then typically that right mean that the meaning of that writing is deemed an issue of fact and not an issue of that but i think i mean isn't a no vote better for you well yeah i mean i certainly acknowledge that the the the standard of review here is to know for but what i heard judge i cood asking me is is it a question of fact or a question of law  d if it's a question of fact which i think it is and i direct the court's attention to united states v brunskill which we cite in our brief which holds that an issue of whether  we know it would be to him to prove so the only question then would be clearly state that to the regulator and i don't know what what evidence is presented to say what language means i can understand the intent of the parties are but i don't know how you present evidence as to what language means seems to be just an interpretation of language in the letter that's what i'm trying to understand right well i guess i would i mean i guess i would say that typically when there's  win win a when a peep particular piece of writing can be read by reasonable people and more than one way just out of the summary judgment standard that that goes to that goes to the jury because after all what we're not talking about we're not talking about a statute or something and yes i agree with you that if we were talking about that that would be a clear question of law for this court to determine but we're talking about a writing by a private party whose who that constitutes the regulatory approval in this case and in surely it's o t s that is the ultimate are still not answering judge ok question yeah if we think it's clear right do you lose or is there an alternate ground that you can win says as long as there is no objection then it's deemed approved what o t s might or might not have been thinking and there is plenty of evidence of the parties behavior after the fact that the district court thought it was clear statute or what would you that's what i take to be the meaning of the regulation that it's that if it's o t s is own non objection that controls it's got to be o t s is interpretation of the meaning of that non objection that controls this anything in the regulation suggesting that it's just a bright line role i mean there's nothing in the regulation explicitly stating what i just stated in so many words i mean that interpreted well i mean i guess what i would say in response to that is that it's it's by an error it's binary and the best evidence we have is that o t s i'm sorry yeah well let me ask you about the preemption yes as i understand it the district court right one two three and part of six hundred preemption right and as i read your opening brief it's only because number one that you appealed with respect to preemption correct well i suppose we've also appealed the non approval claim because remember they they they argued below but yes i see your point yes forms of the that's correction so and that was that claim was disposed of by the district court claim number one or cause of action number one under the preem is that right that is absolutely right yes your argument now is basically there's no basis to preempt if it's basically a contract that's right i mean if the regular preemptive regulation states that it preempts requirements reported to be imposed by state law and as we said in the braves the supreme court's case law indicates that when they talk when a regulation or a statute talks about requirements imposed by state law doesn't self imposed voluntary requirements imposed by contract and actually it's just like to say one thing about why we've preserved that claim well i want to ask you about that because it seems to me  fat there's an argument that the way that ok your complaint does not clearly state does not clearly assert a claim that wells fargo's cosi was not actually used and even if the client complaint did assert that if were really generous then it doesn't to me that the borrowers opposition to wells fargo motion to dismiss did did not adequately present this claim for the district court's consideration and the order dismissing the borrower's claim is preempted by i don't know do we say holder hala but i guess i don't know why i've asked people before no one seems to know but ok so hola it makes it so your claims order dismissing the bars claims as prompted by hola makes clear that the court did not consider that so i don't i don't know why i haven't waived it i actually i i i think just the opposite is true that our opposition to the motion to dismiss makes even clearer exactly what our  exactly what our claim is i mean it says more than once that we are alleging that wells fargo's cost of savings and x was not even based on the certificates of deposit it purported to be based on we saw and we cite to the record several places or claims that it was not actually used as you're saying where's that in your complaint and where do you put that argument to the district court when the district court we don't use that phrase below correct but we make the substance of our claim it's not my understanding that approach to preserve a claim you have to in can't the exact same words you state below just put a moniker on it  him right that's what i mean not actually used and artificially inflated means the same thing it was not actually used because it was artificially inflated thank you very much for your timing good morning your honors me please the core of robert collins little on behalf of the apple e n cross appellate wells fargo there are two issues before the court today the first issue is whether or not wells fargo and walk over regulatory approval for use of their to cost of savings indexes and the second issue is whether or not an actually used claim was sufficiently alleged preserved and adjudicated by the district court with respect to approval i think judge does questioning makes clear that under the applicable regulation twelve c f r five sixty point thirty five d three in the absence of any significant issue of law or policy or supervisory concern expressed by the regulators the cozy is deemed approved that is the strongest evidence of approval is the silence in the record there is not a single object in or expression of regulatory concerns to with respect to the letter itself the first paragraph indicated that would begin use of the walkover cozy as soon as possible for new loans the second paragraph indicated that after using the walkover yukos you for new loans world would undertake an index substitution process for existing loans that use the current cosey and finally the third paragraph indicates that world would submit a substitution plan to the o t s for review and comment all of these things happened all of the paragraphs that i just indicated your honour's appear under the umbrella heading introduction of walkover cozy if there were the least bit of a lack of clarity there the heading itself would suffice to provide clear notice that we are seeking approval for the use of the walkover cozy they want us to disregard the clear import of this letter all together they also want the court to disregard the conduct of the regulators in response true to our promise in the second paragraph of that letter in may of two thousand and seven we did submit a substitution plan with a copy of the notice that we proposed to send to the b ers in in that in receiving me two thousand and seven correspondence the o t s never said what is this kovi a cozy that you plan to submit in connection with existing loans we thought that you only meant to submit it with new loans there is no such question it is clear from the record that the regulators approve the walkover cosey for its use in both new and existing loans the contention that the wells fargo cosey was not approved because somehow through retroactivity analysis we looked back at the o t s and they didn't approve it is our day shifts the o c c is the regulatory agency in the united states government its duty is to examine banks for the safety and soundness of the economy the idea that the not actually used claim i would be the first to agree that the plaintiffs do not need to in can't magic words as they say in order to submit that claim or for that to be a claim but they do have to sufficiently a ege a claim they point to paragraph twenty eight and there is one sentence in that paragraph your honour's and in that sentence the plaintiffs allege quote however as set forth more fully below the rates charged in two thousand and ten and two thousand and eleven often did not track even this higher cd based index as well as said out more fully you below the allegation itself is so nondescript it cries out for more description and in fact it says that this is the preview you will see these allegations in our complaint and they never surface the cluster of allegations thereafter your honour's that they point to specifically paragraphs fifty seven through sixty which are in the general allegations and eighty two and eighty three which judge mckeown correctly pointed out is in the first cause of action for breach of contract each other you're saying well they call it it's this different theory not actually use and they say well yeah that's what happened i mean the contract says you shall do this and they didn't do that and we call that they didn't use it but that's it's really what's in the complaint as to the cause of action isn't i would agree it's what what is in the complaint as to the cause of action when you go to the complaint what's the clear what is the cause of action the cause of action is a purported duty to adjust the interest rate to match the identical to accounts deposit accounts that the g w cosey the original cosey used they take issue with the fact that the judge dismissed saying that claim was preempted and her whole law did they say anything about well no it were alleging not actually used and that can't be  what was said there they did not your honor in three places in their opposition to their motion to dismiss they summarize their allegations and in one place in their motion to dismiss they make a reference to this sentence that i referred to in paragraph twenty eight but there is nothing in their motion to excuse me in their opposition to the motion to dismiss which indicates that this is a separate claim and in fact if we look at the c you know it's kind of to me all that's irrelevant and i'll just tell you why and then you can tell me why i'm wrong ok but what when you're looking at a preemption you have a cause of action that's laid out here and the question is is there some kind of underlying state law that would be preempted and it seemed to me that the district court was kind of looking inside the contract which i'll call the cause of action rather than looking at state law and it's pretty clear under preemption analysis you are to look you have to see if there's some kind of statute regulation court decision or whatever so it seemed to me that the district court made a legal error in the way it went about analyzing this because basically a contract claim and what's inside that contract and that what the parties agree to is not something that's preempted by state law so that's why i'm having trouble i think you just let maybe missed a step in the preemption analysis so i'm interested in your comment on that i have two responses judgment the first response is that there there were two well three sets of claims in toto two sets of those claims involved what we call mimic or the duty to adjust the interest rate to reflect all these deposit accounts that's one and two transparency the duty somehow that the borrowers would be able to verify the cosey by what they said looking at publicly disseminated data those two claims are not pressed on appeal and those i mean he said the only claim left on appeal with respect to preemption is cause number one is the contract claim  on interest rate which i which they reach of interest rates so this transparency and the substitution are off the table as far as i understand and you probably agree with that at least i do i not only agree with that but i would respectfully suggest that also the duty to adjust the interest rate to conform to a specific set of deposit accounts is also off the table that they're not appealing the so so i guess there's a question i'm not sure this is before us but if i understand questions did the district court misapply hola in holding that the first cause of action was preempted under specifically raising they're saying they actually raised a different claim as what how i understood their briefing but the threshold question if i'm understanding judge mchugh ends line of questioning would be the district court misapply hold in saying that the first cause of  action as they originally argued it is actually preempted so that that was a jerone as ruling by the district court directly to that question judge a kudo i think the best answer is this argument does not support their position that their claim is not is preempted rather it goes to whether or not wells fargo and walk before it abided by the o t s or t six off the table due to preemption when you moved to dismiss they came back and said none of these are not preempted and here's the reason claim number one is on appeal now as to whether or not it was properly preempted was a district court correct as a matter of law yes or no and so to keep arguing about will they say this and they say that about the claim we have to look at what the district court dismissed and then i looked at their brief on appeal and i see that they have preserved as only as to the first cause of action so i'm not even looking at the we're back to the question is when the district court is analyzing the first cause of action and did it make a mistake on how it benchmarks for the district corps looked at wells inquiry of whether or not wells fargo adhered to the regulation under this court's decision in martinez which is cited in the motion to dismiss at page as c r seven thirty eight and the site is five ninety eight f third five forty nine at page five fifty six this court said that such an inquiry besides being an app is it to the issue of preemption is fruitless because the regulation of a national banks ed here ants to the o c c regulation is with the in the exclusive purview of the o c c that's the bet that doesn't answer the question if because the cot the private contract is really say an injunction against the agency or whatever or the bank for not complying with i can take the essence of a regulation or something else like i'm put in  contract and that's not preempt generally so why is this different well your honor i think some courts have held that breach of contract claims that are gloss that simply mirror the regulation are in fact preempted for example haggerty i believe held that which is cited in the metzger decision which is in a footnote of our of our brief notes some courts have held these sorts of breach of contract claims to as applied under this court's analysis and silva's to in fact be preempted by the what's the state law that's preempted here it's the application of the breach of contract claim under washington law the application of that that contract breach of  was being argued or raised to the district court but let's take that out for that for a moment then say they're just arguing the first cause of action just as they argued it to the district court and the district court said that's honor i believe it would be metzger which is cited in our brief haggerty which is cited on mats i believe that the district court's ruling itself was correct on that cause of action now i think the court is clear that i the underlying premise of this examination is that the breach of contract claim was preserved the way that they are describing it was preserved i don't concede that i and we understand that bank your order or judicial decision and that's where i'm having collision with your argument because none of those things are present here i think that your honor that a judicial decision haggerty i'm will take a look at those but i think that you're going to mixing and matching between what exists normally within a state is the state's common law versus what's preempted here but i'll take another look at all your case thank you very much your honor your time is expired i think you would have another question yes i'm sorry if i could have flee from the presiding judge on your attorney's fees yes your honor all right it's a matter of washington law right yes you're right they are entitled to it correct yes you are right you cite a lot of other cases that aren't necessarily washington law and so i'm struggling with this in the sense that i think i get your argument that if people want to argue about the kosi search something like that it makes it really hard to enforce the note but they're not in default here correct and so and there if if it's sam big us and you're the drafter if i can't really does that go against you here the ambiguity i think would be would would we would be looking at it because section nine d appears under the heading b default but we don't look we we only look to the heading to circumscribe the contractual provision if the provision itself that is section nine b is itself ambiguous and it uses the disjunctive your honor code collection or in force men and under washington revised code four point eighty four point three thirty which provides for a two way attorney fees one with respect when there is attorney attorneys fees provision in a contract it goes both ways had the bar wars said that we have defeated the notes because we the  interest rate has has not been charged correctly and we are entitled to a collection of damages they too would be requesting attorney's fees and they would be point is section nine d to do so well i'm your honor i would i would as far as the attorneys fees issue i would submit on the briefing on that ok thank you all right thank you very much your hono every i think it's true to some extent that the briefs are talking past each other but that's because i think the key disagreement on whether we preserve this claim is you know how you look at the first cause of action it's true it is true and i admitted that the part of that claim is that we alleged that you have to use the index for all the positive rather than just for c d s but that's not the only part of the claim and if you turn to say using indexes that did not that isn't did not reflect the weighted average of the interest rates so you say no discernible index because they're using indexes well and then it says and then it says and by adjusting was your argument to the district court no i mean i think if we had said if we had meant average rates on all deposit accounts in that phrase we would have said average rates on deposit accounts what we're saying in that last phrase is