legally enforceable if it's not enforceable the judgment should be vacated by his this argument below no your honor it was not raised below zero ordinarily we don't consider issues that weren't litigated below and it seems to me that every issue in your brief are issues that were not raised but what am i to make of that your honor the chroma case is a case that where the second circuit laid out the principles for when this court may consider issues that were not raised below and the testing chroma is whether the issue is a matter of law which here it is and whether any further fact finding is required which we demonstrate is not alternatively it would be a manifest injustice if this issue of this dispositive issue of law were not considered by this court i think what happened here with all due respect to the judge  is that when the judge issued his final order following the trial he found that the note he had to pick a note he picked the this note did the december thirty one two thousand and eight note as valid enforceable he said and accepted the mr hawkins view that the collateral that the consideration for that note was an antecedent debt thus rejecting who dares argument that it was a gift or that there was no promise to repay it cetera by that credible and credible did not your car he found could dares testimony not credible but his he credit and that's important because the testimony that he credited was that this debt that this consideration was an antecedent debt alone and that is what rejected the testimony that this was a gift yes and so that that's what triggers the issue the issue is if that if the consideration was an antecedent debt which the court found it was then you have to look at the no to again because the notes words say for value received and the consideration those words are not enough to state valid consideration under new york law if the consideration was as the court found an antecedent debt and that's the company know that that issue was determined to be paid sale upon payment is due upon sale why isn't that because you don't know if the property would ever be sold and you don't know and there's no obligation to pay that's right that's why it's not a negotiable instrument obligation to pay if the property were never sold but the idea makes sense once the property so the funds will be there then you have to pay the that may make it a note but that doesn't make it  negotiating instrument because to be a negotiable instrument you have to be able to know that it's unconditional and that there's a that there's a date certain when the note will be paid on the issue of sale wasn't the problem in the greenberg case that it was somewhat muddled consideration it wasn't really clear what the antecedent consider the consideration was and in this case it's it's quite clear that there were there were regular payments made it is quite clear there were regular and that's what greenberg versus greenberg says and greenberg the consideration wasn't the issue wasn't because exoneration was muddled the issue in greenberg or so greenberg was the consideration was for past loans that's what this case is about consideration was for past loans once you make that finding then new york law is triggered that's the problem that issue was not before the court it should have been but it's no different then than any other case where you are faced with an issue of law which is a construction of an instrument and the facts the facts are a fine below based on credibility of terminations that that debt that it may be in direct the fact that it may be referenced in another schedule all of that is irrelevant under new york law because new york law requires that if you're going to enforce the note the consideration must be stated in the writing expressed in the writing is what the statute says under section five hundred five and your general obligations law and it cannot be that it is a in another document or you can construe documents together because the law is that it must be if it cannot be extrinsic the evidence cannot be extrinsic to the document ever serry cites american bank in greenberg american bank was distinguished because in order for it to be to work the antecedent debt has to be incorporated by reference or referred to somewhere in here it was never referred to the only words you have are for value received and that becomes significant consideration it with the the record belies that because the pleading show that mr hogan said he did not agree to the note in exchange for further payments which is not surprising because the case was brought because of a failure to continue the payments but when he was asked at trial the other argument was was this done as forbearance for not collecting the prior loans he was specifically asked that question about whether he had discussions with ms could care about that and he said i don't recall any such discussions about that so there is a case where you have no basis for further fact finding where the instrument is is clear and unambiguous except for the words for value received which are words that this court has said are not enough in this context and with all due respect  not a u c c for three four zero a case because this is not a negotiable instrument within the meaning of that statute reserve two minutes for about oh yes i have thank you ron who will hear from opposing counsel morning philip landrigan for the telly richard token call in love a baron landrigan if it please the court counsel just at the end of his argument and i'd like to address it first said that mr holcombe was asked about forbearance and said he couldn't recall the trial was over whether or not this was a gift never intended to be repaid at trial he was asked the question did you ever discuss with this could be there that she would not have to pay this money back and his answer was unequivocal e no it was in that context that that exchange the council refers to wasn't a forbearance the this defense first raised on appeal is an affirmative defense lack of consideration for two hundred years in the state of new york and i cite eldridge versus math the rich cites runyan visions nichols from eighteen fourteen it's in our firm a defense that has to be raised in the pleading below giving notice to the parties that the fact of either a want or lack of consideration was being true there was a true and i have to a trial and there was pleadings below this issue was never raised until the distinguish core for cisco bay which is a case that said that well if you're raised a lack of consideration as a defense and every one of the cases where consideration is is raised as a defense  and prevails is at the trial court because there are you give notice to the parties and if you look at the core big case they get the clearly the case is dismissed on appeal  reinstated when the case went back down the ninth affirmative defense in that case as the affirmative defenses in all the cases i reviewed i went into the dockets in the district court this is a defense it's an affirmative defense it's not was they were mis could there testified in the reason the for the court's determination that her testimony was incredible is that she had a completely conflicting ideas this was a gift and also a contract then agreement that she made paper and they didn't raise lack of consideration as a defense in any shape or form no and we've attached in the record in the brief we cite to the fact she's it's a counter claim made on the promissory note there is an an refers to two in consideration of my past gifts i give you this gift that writing is completely incomprehensible ending greenberg with the defendant raise i think it's the second affirmative defense in that case  that's the one i found in the docket in the eastern district where the case rose the defense of consider a lack of consideration was raised as it affirmatively has to be if you were to determine that it's  waived you would then have to consider whether or not this court whether there are factual issues that surround that and if you look at the record the know the two thousand and eight note is sent together with july nineteenth ninety two letter agreement it also includes the sum and total of the one nine hundred ninety three promissory note and i submit to you that if this issue were raised that that would have been developed below as to whether or not tho the those those those prior obligations and and writings were released and extinguished in exchange for this that would be present consideration it wouldn't need to be recited in the instrument per  two figures that were advanced and so they are incorporated into this and so that the release of those prior obligations along would be consideration the statements that were provided together with th sent together with these detailed statements ms code there testifies in her trial after david and at trial she admits numerous times that these payments had been made there's no question but that the payments would be made so if you were to determine that waiver that you could deem this not to have been waived you would also have to make fact findings which would be inappropriate given that it's being first raised on appeal  nineteen of the two thousand and eight promissory note together with interest from its day that an implicit finding that these amounts were in fact paid by your client and that they were oh he did interest as well right yes in deed there was no loss of already made findings that these this consideration was paid the the finding is implicit in fact that was not contested misquote dare admit it is much she said the question to you and i know it now so i don't talk quickly i just talk over judges and incoherently apparently in addition to the extinguishment another factual issue that you would have to do which wasn't developed below but which would need to be developed which is why you shouldn't allow it to be raised first on appeal is the issue of forbearance at the time of the two thousand and eight promissory note there were the nine hundred ninety three no that's correct there was a stray amount of the later no i don't recall exactly what approximately three point five million dollars it was and it was the failure to sign that that terminated the payments or any dispute that those payments much that her payment would not continue unless she signed the two thousand and eight no now if you were to find that the defense hadn't been waived to you would have to consider whether or not these factual zz gave rise if this defense were raised what would have happened below and i submit to you that as much as i over talk judges and incoherent i would have raised the issue of promissory estoppel in any number of other claims the forbearance would have been developed if she would have been developed this present considered a different trial if it were it would have been a completely different case and the case commence the you did the dispute arose in two thousand and eleven  litigation began in twelve it was litigated in the trial was in seventeen the post submission briefs are in eighteen and you will not find five eleven zero five cited in any paper in the docket until unless there are any other questions to burn things thank your honor first with respect to whether the issue of consideration was raised really any doubt that he had made these millions of dollars of payments over the years and there was no doubt that the payments were made the argument was that these work after that was him that was her argument her argument was gift it's because the note doesn't state in the note that it has the valid consideration the issue you're raising could make a no consideration argument in good faith given that it was undisputed that he had all these payments o that because the payments once in her when she was on on the gift argument once because the payments remember miscue dare didn't own this apartment she had a life estate in the property the the daughters did so the payments were in effect a way of preserving the value of the estate for the daughters and the the other point i wanted to make very quickly  because she didn't have an ownership she couldn't sell it she couldn't sell it without the consent of the daughters because she couldn't sell it without the consent of the daughters meant that that was a condition that would have to be satisfied before any sale could be made that's why all of the documents that were provided demonstrate the no that the note was paid to me that the that the notes paid the amounts paid were loans or extrinsic to the document it doesn't matter in new york that the parties may have known or understood that the consideration was passed down debt that rift was reflected in a document outside the note it doesn't matter that the schedules were there he could have very easily cured this by making reference in the note to the documents that were being in close close with he could his lawyers had also and if you don't raise it you waive it the issue is one of b as between waiver vs forfeiture the if you don't raise it the issue is did you forfeit that's the way  sis goes in chrome and if you forfeited it the issue on forfeiture is was there prejudice to the other side in your not raising it or not giving the judge an opportunity to weigh in on it was there prejudice and prejudice is determined by whether there were there was additional fact finding or there would have been a new trial needed or something like that to develop the issue and here that's not like that it was that there was present consideration in the form of forbearance but if the testimony does the new two thousand and eight note that we're talking about makes no reference to anything about that and the fact that it happened is irrelevant because new york law is very clear you want to cure this problem it's very easy and his lawyers told note maker acknowledges having been made that language was in some of the notes that the judge had before him were admitted into evidence but never signed because his client never sent the document to  and had she insists he insisted that that be sign that could have cured it very easily there were other ways that he could have cured it he could have in the you know this all stems from that construct of trust that was imposed by the judge back in ninety two the court said that this could dare could have how pot the kid in the apartment further and to pay for the maintenance we say you could have tried all these issues before i'm sorry but if the with all due respect the trial testimony shows that mr hope in one of the note to document that the amounts that he had advanced were were were  to be paid back that's what he wanted the note to do if that's what the note was for and the judge found that it wasn't a gift then it was an antecedent debt and new york law is very clear that while it's consideration judged and there's no question it's consideration it's not valid consideration within the meaning of new york law and the exception is under five eleven o five a general obligation law true it was not raised it should have been raised but york this court has the authority if it wishes to address this issue big precisely because it's one of law it's in green reverses greenburg it was a summary order of firming it should have been raised without question but it wasn't and now we're faced with a situation where we're asking this court in the interests of justice to enforce the law because it is a question of law it's about reading the note the four corners of the note and nothing else because that's what you've been guided by the new york court of appeals to do read nothing else but the four corners of the note and if it doesn't extend tain in the writing the words required to