the next and last argued case on our count it today is wells fargo bank versus hold no asset management thank you believe the court committed reversible error in how it constructed the unambiguous invitation of it and in so doing affectively modified the holding of the court of new york state court in drew versus john deere by requiring what is essentially magic words and finding that the absence of those magic words in this document is what caused this document not to manifest the instep intent that the auction occur custom and usage in the industry which if properly applied would have shown that the work actual words used in the invitation to bed manifest of the intent that the auction occur with regards which w well your honor i think their words throughout if you look at section three a it says that the sale shot will be awarded to the highest bidder the receipt too says the winning bi shall be the highest bidder there's nothing in there that says it shall be unless we reserved or withdrew or did any of the other things that one does when an auction is god doesn't require i would think here with the new york law a presumption of research and then to the extent that language is ambiguous it would not get would prevent you from thinking the missing much if anything i think you're right we start with the presumption that unless the intent is manifested the auction will be presumed to occur with with reserve our position is  extent i don't think you could defeat the presumption alyson this is well i i i would take issue with the court's analysis below that there is language that suggests it is reserved i think the core erred in how it constructed that language the two points had raised for the two you mentioned it looked at the word define term sales which on ambiguously refer to an actual auction not the sale of an individual piece of consistently to mean auction i do not holding this up as a model of drafting but but if one were to look at the word sale and every time the word pittel s sale appears one word to substitute the phrase auction it would work there's no provision here where does it and the two that the court below looked at was really the last two sentences of section three now it's worth noting that what what what those two sentences say is that the trustee reserve the right to reject a bid which he deems to be made by a better an able to satisfy the requirements in connection with the the auctions or to whom in the trustees judgment a sale capital last may not be made and the court said even though it's capitalized that didn't refer to an auction all right our position is if you put auction in there it works the auction could not be made could not occur to someone to whom the trustee concluded they could not lawfully make that auction and they could not accept the bed and i would also that well because first of all if it says the right to sell all or part of the collateral at a subsequent private sale if that word sale only meant any old sale of individual security they would never had to modify it with all or any part of the collateral that would have been redundant by definition that you're talking about a sale of collateral in the public or private sale if you want to sell them you know auction does makes no sense to me well but again in the land of farm sales and everything else and we have auctions on well again well as an element of an auction not the auction itself but not how that's defined in the very first sentence of the imitation a bit that's the problem use that as a defining term not as a generic word all right it has a specialized meaning in this document the reference to public or private sale your honor we think actually strengthens argument because again if it was just a sale of a security they want to have  modify that term with the phrase public or private those are the only ways to small ass sell a security so the fact that they felt the need to modify that word with that phrase indicates that word had a meaning that they were trying to change with that phrase arguing here about how many angels can dance on the edge of a pan it seems to me and we go right back to the point the judge reggie was making as i inferred from her question well if you agree with us that sale means auction then we've defeated the presumption if you that's really what this is and if we think it's ambiguous then you lose no i think it's well if it's ambiguous i suppose we have to retenti manifest the intent ambiguity means we're not sure what it means we're not sure what intent is manifest that i don't think ambiguity means it matter if the presumption applies a presumption say if we can't if it's unclear what this means it means with where serve it means unless it manifests that intent and if it's ambiguous as to whether manifest that intent we only have is not something the presumption applies to we still don't know if in fact it manifests the presenter necessary to overcome that presumption frnt so your honor if you look at drew also does not say what is sufficient drew simply said a loan of itself i think is the words that use in the opinion the the language that says the secure the the asset will sell to the highest bidder that alone was not sufficient to rebut the presumption but that's not what we have here we have an invitation to bed that says that it also says it will sell at a time certain it also says it will sell in a closed auction dolphin aapl essen the other opinions we cited which don't contradict drew but simply fill in the gap of what will apply those provide say that in those conditions is generally enough the the there's a possibly of opinions as a district court noted if you look at them collectively what you find is how the courts look at and we think we've satisfied here the custom in usage your honor again if it's ambiguous we think you can look even more custom and usage them than was done here the custom in you should is clear wells used to different forms that difference meant something but the court billows decision was because the security sold almost all the time regardless which form wells used it doesn't mean anything is wrong it must mean something and what we say it means is when you use a form like this form what it means is in this industry because bidders have an illiquid market they have to spend a lot of time and money trying to to do diligence as you signal them when you use this form you are going to sell it is without reserve the if that weren't the case why in one thousand of the thirty eight auctions of wells conducted in this field did they include language with reserve your honors time is expired you reserve one minute for a bottle yes thank that wells fargo used a different forms at different times written by different individuals and then none of that changes the fact that we start with the presumption that an auction is with the reserve unless the seller expressly says otherwise at the outset that's the first option and under new york law it's the presumption in re your claw and it's the presumption that that governs not just starts with the basic contract principles the basic idea that we don't force a property owner to sell you his or her property unless the owner expressly tells you in advance that they're going to sell their property no matter what no matter the level of bidding no matter their own view of the properties value and that's the basic contract principles that we have in the treatises in the horn books and those are the sources that new york law that drew core back in state that it is with the reserve that is absolutely the the core principle of the law and in fact it's done the other way that the notice for it to be without reserve for the for the seller to be forced to actually terms and that's precisely what the drew court addressed the question and drew is frankly the same question that we have here what if the owner announces that they're going to sell to the highest bidder is that the expressed statement expressly announcing that the op does that constitute making the auction without reserve to transform it from with reserve to without reserve and the answer is no that that language we will sell to the highest bidder doesn't cut it and this is what the appellate division said back in one thousand nine hundred sixty three citing the same treatises that both parties are looking to an announcement that a person will sell his property  public auction to the highest bidder is a mere declaration of intention to hold an auction at which bids will be received in council said the words change the perception in this offer you know that is the new point of the posing council as is making in looking at other language that in the auction invitation to bid i think it's helpful if we're going to talk about the language to to look at the entirety of it  procedures and then roman it to says otherwise the winning bid for each item of collateral shall be the highest qualified bid for each such item of collateral that's the language doesn't make it the south doesn't make it with reserve nothing there that says that the that it's that if you try politics that for not catching that this or doesn't make it without reserve is nothing there where is using that shall in the sense of must or definitely and i think that's  is is a case that has some definite language and in fact it's that literally that word definitely is used the contract will definitely be awarded on friday may thirtieth of eighty six to the highest responsible bitter and that language the new jersey court latched on to and said the definite award language raises the memorandum from a solicitation for offers from prospective purchasers to a firm offer to sell the palm particular items well but we're we're back by drew regardless and we do doesn't have that language i mean the drew language is the same language we have here which is will sell and the question before the court below and the court here is well when you have the language that we will sell to the highest bidder is that sufficient to to be without reserve the answer is no and then i understand the argument on appeal as well drew doesn't go doesn't answer all the questions because drew doesn't tell you that perhaps there's some additional language that could work and we should have the opportunity we've been hold code to develop that but that's not what drew leads us to in this case let me contrast drew in drew it's a short opinion but apparently based on the opinion there was an advertisement an advertisement for an auction for a blue farm equipment and that advertisement said that it will be sold to the highest bidder and that was it that was the only evidence that was put before the court and so the appellate division recognized that perhaps there is something else perhaps there is another document perhaps there's a statement by the auctioneer at the date of the auction that could events the necessary express announcement of without reserve and so on that basis they said you know we're not we're going to deny the plaintiffs motion for summary judgment but we're going to let you see if there's anything else well that's not our situation here our situation here is that we have a complete record whole code doesn't suggest that there's any communication about the january two thousand and sixteen option for the court to consider whole co itself cross move for summary judgment on the same facts so we have a full record of communications about the january action it's already before this court was before the district court and so and what we have in front of us and the complete record is no more than what the group court has already said is insufficient so there's no no need to go any further we have a presumption under new york law that have that that an option is with reserve unless it's expressly announced otherwise and where we look here at the invitation to bid we look here at any of the materials related to january auction that are put in the record which both parties we prosecute on summary judgment and what we have is the same as the for fourth department ruled on and drew and there's no need to go any further without that express announce you have an option with reserve the trustee reserved its right to reject all the beds once they were in to the extent period in this case because they didn't meet the floor and that was established beforehand and then to  rebuttal true does not answer this question here drew said one of the multiple things in this invitation to bed standing alone is insufficient a we have more than that one thing in this be true does not say then what is sufficient so what drew is a limited impact on this case which is it set sort of the starting point not the ending point in fact true to decide what you think the every man did the case back down to the lower court refused to give summary judgment because the court said well this one sentence in itself isn't sufficient to establish the auctions without reserve but we're going to remand because there may be other things so it's anomalous to say  question you rely on the definition i think you argued earlier to us of the word sales plural and the first page of the notice  indenture that was defining sail differently that was in an office in connecticut that we should have driven up to and read it and realized that the singular is different from the plural and figured out was different from the plural you give me the right well i'll give you  it and reserves the right to sell all or part of the collateral at a subsequent public or private sale i understand how the second use of sale could be auction but the first use of sale make any sale i don't think that well i don't think that is the fair is the best reading of that word it says you know it's in the context of talking about reserving bids at sales so the saying at a particular auction they don't have to go forward with it under those conditions i don't the meeting seems to undercut your ability to argue the theories clear disavowal of a reserve which is what new york law requires well it's very hard for you to say that that this kind of language clearly disavows i'm not saying that i'm responding to what the district court did below and finding exactly the opposite we think if you take a holistic view of this whole document that is what it expresses but that one and i think there was a clear disavowal when you say the things they said when you have a sale at a date certain in a closed auction where you have all these provisions that are mandatory without any exception as to how these things the collateral will be traded in the winning bid will be determined yes i think that manifest the intention your honor this decision if it's allowed to stand will have a chilling effect on people in this in this space where you don't have a market where the securities and the things that are sold are opaque and require substantial amount of time and effort to diligence and what happened here is because they thought not just my client but the brokers too as you can see from the record thought that this was without reserve they spent that time and effort but if now we're going to tell people that we've got to get into as you noted this stuff you know it's going to change the focus that people have probably spent with you all visiting the district court and us here it may also improve the drafting well one would hope it would improve the drafting but but then that should obviate the problem that you're identifying well a different form would have a different result but this form