please the court my name is robert duff and i represent the plaintiff appellant green been true this case has been frustrating for mr ben trued from the very beginning because the defendant law firm rather than addressing plaintiff's claims head on has spent all their time trying to reframe mr been through twenty for example mr been through its first claim is that it was unfair for the law firm to follow the second summary judgment motion after mr dunne treated elected arbitration the party's arbitration agreement very clearly and unambiguously states if you or we elect arbitration of a claim neither you nor we will have right the right to pursue that claim in court yet this language appears no we're not police brief or any of their briefs before the district court and in fact not even a discussion of this language appears in the in any of their briefs instead the law from wants to talk about how filing the second summary judgment motion was consistent with the state court proceedings and rulings but that's not mr been troops claim his claim was not that there was a violation of a court order or a court's and post day and that's what made it unfair mr benn troops claims that it was unfair to file the second summary judgment motion because the party's agreement said neither party could court once either party elected arbitration what happened in the state court has very little if any relevance to that inquiry the only way there could be deference to the stake or on this issue is if the law firm had played a preclusion doctrine or the richter feldman doctrine for instance and neither has been put in this case absent such a defense there is absolutely no basis to defer to a court ruling or the state court proceedings it's no mystery why the law firm has not addressed this language proceeding to inquire after green not to proceed in core would seem to be patently unfair well they say you drag your heels about the arbitration that's why the while the facts the the the facts the judge we we were or we the court ordered a star betray sion we believe that it made sense for for capital one to association and they rejected it and said that we don't accept their arbitrations with capital one because they have not complied with our consumer related rules in the past and at that point we felt like we had complied and had done what we were supposed to do they're saying again what their excuse was that they tell me again what the reason was the american arbitration it was it was that in the past not not related to this particular claim but in the past the capital one had not complied with or essentially consumer rules got one is the bank correct correct and so yeah there was then a delay after we tried to initiate arbitration and mr been trued did not then try to file another arbitration with another potential arbitrator of which there was one other one of the one of the three had gone out of business by that time but our position is the you know that's the state court proceedings in you know it really is not relevant to whether they were permitted to go ahead and file that summary judgment motion and pursued in court under the agreement because the agreement was very clear once there's an election of arbitration it doesn't say initiated or started or anything like that there just simply has to be an election of arbitration once that happens you cannot proceed in court mr been through clearly elected arbitration there's no dispute about that and yet they want to  proceed in court in doing so we believe that they violated section sixty ninety two f of the world and they have to wait forever well that they're the remedy was to initiate the arbitration themselves but if they couldn't find anyone well i suppose than the you know if literally they couldn't find anybody they'd be out of luck bud but they're bound by their their dreams this is an agreement the capital one johnson this is not an alien and not an agreement that mr well it's one that they drafted and i think as a practical matter just they would be able to find somebody even if the three named entities couldn't do an arbitration and be able to find somebody but if literally they couldn't our position would be that you know that wouldn't be able to pursue it that this mr benchers next claim is that the law firm either attempted to collect too much interest or mis represented  critical here are four undisputed facts which the law firm knew from what i don't understand what are they why are there the two different interest rates and percent thirteen percent  i mean you know the reason is because the the reason that we know now is because they they cut off the variable part of the interest rate when they transferred it essentially to the law firm to file  lawsuits cut off well the interest rate was comprised of was the interest rate of the prime rate plus a plus a certain percentage or margin that was disclosed that w what we know now that that margin was ten point six five percent and the prime rate was three point two five percent that's that compound that goes together comprised of thirteen point nine percent so when before the charge off it was the interest rate that capital one was charging mr been true to him which went into the principal amount that capital one trick was one and collected was the that margin the template sixty five percent plus the prime rate when they transferred it out to capital won't or to the law firm they cut off that variable part which is the prime rate hadn't varied since late two thousand and nine to the present but you know they i guess in an abundance of caution or whatever  they because it could very they cut that off but the problem is with that is that they didn't you know they sensually didn't tell mr byrne trued and it was disclosed to mr been true that two point six five per cent is your interest rate and so when he you know when that representation is made then that representations falls and it's material to him because you know he can't then go back and calculate and see how much interest he  well again if it's material to mr bench rude because he either i mean we've argued all along that it's hard to tell you from the facts before the court it's difficult to tell what the correct interest rate is if the is thirteen point nine percent then they have misrepresented the interest rate to mr been true if the correct interest rate is actually two point six five percent which they said they told mr bender that is then they've attempted to no evidence in the record was it you why what why do you get more money if it's thirteen percent rather than ten percent i mean we want to we want to prove that either they've attempted to prevents a deck lector from attempting to collect you know even five cents more than than is owed and it also prevents a debt collector from making a missing both of the interest rates are  that there is nothing in the record to say what the actual interest free the correct interest rate is i mean that's the we have two interest rates but there's nothing to say that interest rates and both can't be correct either the yes and a lot both can't be correct the implication is wine is that you're saying neither is correct i'm asking you what is the legal consequence how does that affect the loss well i mean the most likely is the thirteen point nine percent is the correct interest rate in not you saying that well because that's a reasonable inf i've never heard anything so confusing do you understand how confusing you are you talk about the two different interest rates and they're both wrong but you don't tell me so what what is it we talking about them there because because we have a an f d c p a violation because there are two interest rates what's important is there could not be two there had to be one there or there is no evidence and that's what the district court relied on there is no evidence that the the interest rate was legally changed in chains money because of this would not know i mean that's it it's an lawyer i mean a thousand dollars is important to some people you have to pay for a lawyer don't you if you recover under the f t c ph you're also entitled to recover attorney fees as well there's a fee shifting provision and what about the original debt and then have any impact on your lawsuit on the amount the the original debt is has been arbitrated it went to one of the other arbitrator this is apart from that it's a completely separate correct it's been arbitrated and we're waiting for a decision from the arbitrator and did the state court set a date by which you had to seek arbitration did the said you tried to get it and you were unsuccessful with regard to the people a did that have any impact on a second arbor arbitrator fact that you couldn't get  lapse then they then they filed their motion to dismiss that's correct judge and then there were additional of pleadings and things fall in the state court and the judge then ordered us to again initiate the arbitration with a different arbitrator is that to different interest rates is that the only complaint you have of whether there is also judge the issue with the them filing the summ cracked on april sixteenth i believe if you do after the deadline they were told no my client waited waited another month more than a month nothing was happening now my clients and what are has is a client who's a party losses were they relieved of that deadline then was that your argument was the plaintiff relieved that in other words the court set a deadline for which they were received good arbitration right that passed right  have a lawyer who's got her appearance on file before judge regular peers before has got a case that's now active in a client that's a plaintiff in the lawsuit they waited and waited another five five weeks or so and they went back and refiled so the question is  certain amount of time to seek arbitration pursuant to the agreement correct they sought arbitration but failed to get it because aaa said they wouldn't wouldn't do it the time lapsed that the state court gave them to reach to seek arbitration cross that correct correct that is correct and then you go back again once the time of lapse and file a second motion to dismiss five weeks later review the until the may two thousand and eleven statement he's going monthly statements and on the statement it says exactly what the interest rate is says it's thirteen point nine which is the prime which is three point two five plus the other item which was ten point six five that stated in there the kit but it also there was a notice in there that says you're you're suddenly months passed you over the limit membership fees other things this isn't a record this is items documents he says we're not going to compound interest any longer and some other things and so then gets the quarterly statement among three months later may the august fifteenth for may june july august whatever is the ninety days and on their own on the front and front page it has the interest charge calculation and it's gone down it's taken off the prime minister now ten point six five it and that's that's what he was told in the statements it was clear was was going on in the kind of agreement that he actually attaches in there to says that cap one can change the terms and put in the rate and that's what they did i don't not sure why there was placement from the client cap one a large financial stu's that represents interest at ten point six five they get an affidavit from their client that says from this date on it's ten point six five from that date on an affidavit this is and so that's the explanation for the interest that's what the record showed i don't think there's anything wrong with regard to collecting that so i think we prevail on those facts and if we don't i don't believe it's an unfair unconscionable act and so it would seem to fall within what my third  perspective the agreement between the parties overrides what happens in court again they've not there's no rush to the car to hear there's no controlling issue that the court has addressed it's the agreement says you can't do this and  clearly the f t c p a a incorporates what an agreement says that it does explicitly with regard to the amount of the interest here the agreement says but when the judge set a set limit on the  impropriety in the defendant saying ok this stays over no arbitration issue yet i'll file my motion for summary judgment again that's consistent with the