claims for breach of contract when they conveyed their properties to the government do you agree that the three temporariness least sign documents are going to go not at all your honor so i mean i understand why you argue that the that the offer should be separately offered complain to the separately but you're saying the other three shouldn't even though they were you know the rule that the lower court in the government relies on basically says if you have a group of documents they can be read together as far as the say there's a similar term that's used in all three that term should have the same meaning in all of them but but here they're trying to flip that rule on its head and basically say when you refer to one document you're necessarily referring to all of the related documents that just can't be the right rule of contract interpretation how else could a party refer to only one contract when that's their intention the parties chose to refer only to the mortgage which is a security instrument or think collectively define wouldn't yes and that's a term that the parties could have used in this standard form contract but they didn't they did not use the term loan obligations they used the term security instrument and we have to give meaning to the words that the parties chose there's a reason that the offer to convey here refers only to the mortgage because that is the document that was to cover the property that was being conveyed again if they wanted to convey or refer to all three of those documents all they had to do was refer to all three of them i mean if you look at the loan agreement itself has got a very helpful guide up front that talks about the three different instruments that set ten decks thirty two also if you look at the regulations the definitions section they talk about all three of these documents separately the agency knows what each of these three documents are they're all the find in delineated very separately and so if they meant to refer to all three that's the terminology they would have and should have used so we have to give b interpretation give meaning to the words the parties use the parties use the word security instrument which there's no dispute refers only to the mortgage and so we have to enforce that intent the offer be convey right in some cases there's more than one mortgage in some states that's a mortgage other states it's a deed of trust that's also clear from the three thousand five hundred and sixty regulations that that defined all of these terms of but there's no dispute here that security instrument means mortgage so you can read that word as mortgage so to to be specific what the offer to convey is conveying is all of the right title and interest in the contract rights that are described in the mortgage so really the question is what contract rights are we talking about that are described in the we were just reading from when you say all right in the mortgage that's in the offer to convey security appendix ninety the key clause that issue  i'm using the word mortgage for security instrument for the court in being yourself as hooting in the word mortgage not correct it's not in the document correct yes because that is the that is the security instrument again there's no debate between the parties and the or the with the court below that security instrument again consistent with the regulation black's law dictionary of security instrument i mean you can look right in the agency's definitions at th note let alone the prepayment right that was included in that no let alone any claim that may have come along with that premium rate so you can see there are several layers of remoteness that you have to go through if if you're mr ruff as a reasonable person signing this document looking at ok what are my rights in my contract rights that are described in the mortgage it wouldn't be reasonable for him to conclude you certainly wouldn't be on notice that he's giving up that ri is a number of issues there st of all we requested to prepay in two thousand and eight in the record is clear that the partnerships did want to get out they did want to exercise that right to tap into the market value of their properties and bring them to market and they've made the request in two thousand and eight by the time they got to the end of the process it was about three years later and a lot happened in that interim including the fact that mr rubb was diagnosed with and later sure  and the government refused to let you know i was a breech it was not one you had the right to call a breach and we did file a breach action your honor that's why we're here today and we filed that rejection promptly certainly within the six years statute of story load and all of that by just turning over this property rather than them foreclosing on you yes they threatened foreclosure so that the partnership do not have a lot of other choices but that doesn't mean that they gave up their right to sue they enforce their right to sue by bringing this very last and they did so within a couple years hypothetically if we disagree with you on your view that the promissory law the mortgage agreement and the really broad reference to you in the assignment to paula wright's title and interests and all contract rights as well as a whole host of other things particularly given this contacts were the property was in trouble you were at risk  foreclosure and you just wanted to turn it all over the government suggest that you were releasing everything the government in exchange for giving your dad why you think that the best rating of that assignment clause for several reasons your honor st of all because there is encompassing all inclusive release ginsburg is assignment from one private party to the other turning over leases and the right to get ranked going forward but it doesn't say anything it doesn't have this all inclusive that you have in your assignment and it's a different situation also because it's a term you're turning your property over to the government they're turning their property over to another private company it doesn't those clauses to me i don't see how  limitation in this assignment that it's on all of your rights titling interest in all plans for rates you're out of that the language is actually strikingly similar and if anything the language is more broad and ginsburg and time limit your honor that the question is whether the claims knew with the rule if this is a completely broad release and we really read this is releasing everything in what you're trying to say as well this only applies to obligations or rights that arose after this assignment then you need sometimes home protection well we're only looking at an assignment of question of whether they already accrued claim had been assigned so as far as the time limit we're only talking about of the transfer yours doesn't i don't find ins from useful if you want to keep her alive it's fine that you answer my question this says all it doesn't qualify it it doesn't set aside anything else it says all contract really right to cause a claim is different the chosen action you need some kind of express or implied designation of a minor and from all other kind of absence you might be turning over it is different why because it's a chosen action it's more of akin to a personal right and that's what if you read the sprint case from the us supreme court it has a long history about that but the bottom line is dominion in applying ginsburg recognizes that you do at least need that implied designation and again back to the language both ginsburg and our case talk about all rights title in interest except the ginsburg you get is actually broader because it's all right to settle an interest in the underlying contract whereas ours is all right title interest in certain contracts that are described one thing i'd if they want to  when your snow i write for our describes it physically in the morning no i mean that's certainly that point still remains you have to give meaning to i don't know how else the party can refer only to the security instrument if their intent is to refer only to the security instrument that's the language that they use but what i wanted to point out is if you compare the contract rights that are described in that section four of the offer to convey to the mortgage document itself which is the reference security agreement that there's the all of the interests lin up the government let's remember what the purpose of this agreement is the government is acquiring the property so they want to make sure that they get everything that goes along with the property including any attachments to the contract to the property any improvements as well claim because there's simply no language designating that claim i also want to briefly mention it we're talking about so that's only if we read these documents separately we read them all as part and parcel of the same contractual obligation and you find all contract rights and you find no your honor because you still need something that tells the party there's a crime i think one thing that distinguishes dominion all these other cases is there was no dispute that the parties to the assignment intended to assign the contract right and under the restatement they believe it section two hundred and forty six dollars it's even signers intention that matters the question is did the assign or intend to assign that right and there's absolutely nothing here to indicate that mr rupp intended to assign that right i just very briefly on the facts i want to point out if we're talking about the fact that all of the government points to the circumstances only because i think they realize there's nothing in the language that actually points to the claims but if we're talking about the fact we have to remember that we have a very incomplete factual record this motion was brought in the infancy of discovery and if there is any facts that matter then we're talking about parole evidence and that would mean that there's an ambiguity if there is any if there's two reasonable interpretations at a minimum  interpretation is certainly a reasonable one so if the government's interpretation that they somehow required a right to sue itself and that's really what they're talking about here that they somehow acquired the claim meaning a right to sue themselves if that's a reasonable a is clear and that it says all contract rights and that means all contract rights and i thought contract rights and security instruments there's only one security and employer correct but that security instrument as we argue in our brief is part of a larger total contract among the parties that encompasses the loan agreement a promissory note and the mortgage and so the money just wrapped that way it could have been drafted that way your honor it's true but it was not necessary because it here is clear it doesn't come as everything and i mean all of that all of the documents that relate to that was signed on or about the time of the offer to convey security all they all have to do with anything the property or extinguishing nothing that i saw that suggested that there was any interest concern waiver release or anything of that sort with respect to any sort of an accrued cause of action no i don't think that the record shows that there was any discussion of the accrued cause of action but i mean i see nothing that suggests or implies that anybody was even thinking about conveyed by cause of action i think i think that that's probably correct or at least the record doesn't have doesn't show that but the point is that there was an intent to it's not necessary that it is the many resources that this or that there be a specific reference to the flu cross of action for it to be signed over rather the point is that all contract rights were intended to be moved and that's clear from the language of the conveyance and that income says any include accrued claim for breach it's true that it could have been dealt with specifically i don't we don't disagree with that point but it wasn't everything was moved over and that's as we said part of plain language interpretation by the court and it's backed up by the contemporary circumstances which as i've pointed out you've noted demonstrates the partnerships interest in moving these properties out of their hands and so it's not the larger umbrella of all contract rights is sufficient to include any accrued claim breach and so that's demonstrate i think in part by the foundational documents the know the the loan agreement in the censored it's got to either be express or also point out that on the facts in that case the s ignore had already filed a certified claim of the government the day before it signed its assignment so that you emphasizes the importance of the temporal scope of the assignment in that case that makes it very different instrument right yes because it well it does because it is more generally if you read the entire agreement it talks about conveying over the property and the loan being forgiven so that where lation ship of the parties that was so you can be terminated i mean that's a same question i asked your adversary in the offer to convey security the languages can be all right title and interest in the contract rights described in security at the same time to start this transaction are deemed to be interrelated and part of one transaction that doesn't necessarily mean that th of action relating to a different document and i think i would disagree slightly on with the formulation which is to say it's not that they form a single transaction i think that's a little bit different from our saying was that if force is a contract it is a simple contractual relationship and so what i mean if you told me a minute ago was that the offer to come a security only referred to one of the three documents  in what you are now referring to as a single promissory note is listed in the in the mortgage itself so it connects in that sense and then if you look at the loan agreement or the other documents it's not possible to disentangle them because of the in a rocking rights that the three documents create and so means something more than just going forward it means that it's all the rights of the party had in the contract or are now extinct right before you sit down i want to talk about the takings claim because i i don't understand how your governor the issue here though your honor is that all of plaintiff damages allege damages spring from their contract so they they did not particularly below and haven't articulated the raise here any damages that are separate from this moratorium on their right to express a possession and then we have a statute that takes that right away that that doesn't that that just because there was a can a separate contractual agreement with respect to a loan application doesn't take honour's regarding the contract language what i was trying to describe really just want to clarify when we're trying to figure out what our rights and contract rights described in the mortgage it really is an odd phrase but there are actually rights contract rights described in the mortgage rights contract with rd parties then what i'm referring to there is if you look at appendix thirty six right under the property description there is a long list of rights and interests including rights and contracts that go along with that more with the mortgage i e the security instrument and it very closely mirrors the different the long list of the eleven types of interest that are being referred the offer to convey securities so that's clearly what they're talking about they're not other rights in other contracts that may have been signed at the same time but were separate agreements not being referred to there's also i think it's worthy of noting there's a reference to insurance claims in part for one of the offer to convey security so the parties did know how to refer to a claim if that's what they were trying to get because there is a reference to insurance claims as far as the facts go you know the government clearly does rely on the facts that shows this is not in their view simply a plain language case and therefore ready if there is a dispute as to the fact that a minimum we need to to finish discovery in this case there's a lot assignment of a claim was found to have occurred the parties the assign or in the assignee agreed there was no dispute that they were assigning that claim here there is simply no evidence that mr rubb intended to give up this valuable claim thank your hono your requests really would be really really and for purposes of further development of the record that would be an alternative argument we we do think the language of the agreement is clear that there's simply no reference to claims you need some kind of a designation of cla clearly not there so we would be reversed on that ground alternatively if the court does agree with the government that the facts matter then we need to find out what the facts are so that would be an alternative position all right thank you thank you