well we'll begin with midwest feeders versus regions by mr sandberg you your honor may it please that this is a case of facilitated theft over four million dollars was stolen from my client in a check writing scheme and that feat could not have been accomplished without the  and assistance of a friendly bank i'm willing to wager that no one in this courtroom has ever written a five or six figure check to someone and then immediately ask that someone to endorse that check right back to you so you can then go take a check that you wrote from your account to have endorsed back to you to deposit into your own account it is beyond suspect like that there is no we all suing there's no conceivable business or personal purpose for a check like that there's they're not used in the cattle industry or in any industry and in banking they give labels checks like that like red flag or irregular on its face or commercially yet regions bank took hundreds of these checks totaling ten tens of millions of dollars was the root of whom it's a duty to the person bearing the last of the failure to exercise ordinary but is there any evidence in the record that midwest and the alpha account well there is no evidence and it's also not framed by the pleadings is there anything within the four corners of the complaint that midwest was actually the owner of the alpha can we believe that's that's what's play your honor mid west set up the  written from the account but midwest definitely had an intangible right to the funds themselves and the proceeds of the checks we are not claiming contrary to what's been argued that region's bank had an obligation to investigate or to pry into mrs mosley's affairs or to take extraordinary measures in the opening of her account all regions had to do was what any ordinary bank does what happens all the time when irregular instruments are are presented and that is to simply decline to accept the check that alone would have deprived this is mostly of the linchpin of her scheme and we believe that the question before this court well is first of all instead of doing that region's bank facilitated the theft and the question before the court is whether regions can be held accountable for doing that and we believe that georgia law supplies at least three claims for relief to hold regions accountable first  mentioned before under section four hundred forty second common law negligence and third conversion for our section four hundred forty claim all we are asking this court to do is apply the plain language of the statute nothing more that person bearing the last answer i gave before it comes directly from the statute for our negligence claim all we are asking the court to do is to apply a recognize duty a pleasurable to banks in these circumstances and to let the facts of the case play out to determine the extent and how it applies to regions and for our conversion claim all we're asking the court to do is to recognize to all right is to apply our two already recognized property rights both by section eleven three four twenty of georgia's code and in the common law  as i noted before in section four hundred forty the that statute expressly extends standing to the person bearing the laws that language is the operative language for statutory purposes it's not cherry picked it's out for any particular purpose other than to show standing this court like all courts should have accord that language it's ordinary meaning and assume that the georgia legislature meant when it said person bearing the loss it meant a person bearing the loss in the plainest and most ordinary terms possible that it shouldn't insert a person entitle to enforce the instrument in fact suppose she had taken the money and give it to merrill lynch to invest in the stock market would bear lynch be liable not if merrill lynch wasn't taking a check that was written by the well they took and checked if you wrote a check on that scheme it didn't originate at a feed yard or a catalog sion or a brokerage house it originated and was facilitated soley through a bank and it was the checks themselves and it was the business of the checks themselves through which the scheme was facilitated and it was a business regions bank that is in the business of scrutinizing in reviewing and processing checks that accepted in accepted the mostly catalogs and then of course there's the mostly account region mostly cattle auction has rights under the deposit agreement to write checks from  no customer and we have the gerber case and we have the culture case the gerber case recognizes the duty of political the banks when presented with checks that are a regular on their face and not made to the person you know cent eleven three and nine you don't meet any of those categories that's correct your honor and we are not claiming person intitled to enforce status and neither did the georgia legislature when it sat down and decided who should be granted a claim under eleven three four hundred four d the georgia legislature uses that language in that definition in at least nine other statutes that we're aware of but when it sat down to decide who gets the right to assert a claim for a bridge under this statute it deliberately left out person entitle to enforce an instrument and deliberately included a person bearing the law a cause of action is there a person bearing the loss and well sure anybody who they have an arrangement with the money is supposed to be used for sort of thing sort of a trust and so they'd have a categories the first two to be may not be brought yet so and we don't fit into the exclusion there which by definition and by statutory construction means we fit into the inclusion but the two categories of people you've just brought up under the statute are those that the georgia legislature decided they're the ones that they singled out as you can't cover by that you say no we're not covered by the other we're not within the class that the georgia legislature has segregated is not checks presented by regions own customer and deposited into that same customer's account at regions bang in u c c parlance says the court has noted the apt pellant is not a person who may challenge the checks at issue but those persons don't include the appellant and that is for sound legislative policy we submit to you that the two most important pages of the record are pages twelve and thirteen and the reason is that it dresses judge bloom's question and judge carnes question because a copy of the check that was presented to regents bank lies there in it and you will see that it is commercial paper you will see that on that appellant's name appears nowhere instead the customer of regents bank appears as if it is written the check there is a blank indorsement of the pay and endorsement for deposit into regions bank's customers commercial paper banks look at the paper that's presented to them each of the panel members here has addressed you ceased and in some instances they have found reason to depart from the code but only when there was some other type of said if in fact that's pled then isn't there an interest in the funds backing the the instrument as opposed to an instrument itself correct your honor and you draw the exact distinction that was yes there is a difference between an interest in the funds backing the unit and the instrument again i hate to be simpler but that's why we call it commercial paper it's not the duty of the bank to try to figure out whether there is a separate agreed and your hon i don't know whether the allegation of ownership is there i do believe though that the checks show that anyone receiving that paper would have no knowledge of the argument as they took a risk that they took if they owned the account that took the risk that it's not coincidence that this same appellant entered into these arrangements and lost money more than once and the reason is because it's self in those ancillary contracts that are not at issue here they do have claims against the people they entered into the contract with at page one of our reply brief we indicate their claim which pursued against mostly cattle what they don't have is a commercial plane and that's what's so important  judge adams said also you cannot confuse an interest in the funds backing the checks with an interest in the checks thems so many plaintiffs have made that mistake and and every instance in which they've done that they have not been allowed to bring either u c c claim or a common law claim appellants main argument is that you should pluck from three four and forty what we call the imposture rule a clause within a phrase within a sentence within an entire statutory scheme and say ok person bearing the last wipes out eleven three three zero one well we know you can't do that for several reasons one the u c c is not read in a vacuum it is a comprehensive scheme there are a number of different statutes that define what a bank's duties and obligations are when it riseth check to release twelve and you can't take one and pluck a phrase out of that we know that second that argument is internally inconsistent every time that the appellant makes that argument that they leave out the predecessor to the same sentence in which they are arguing about the storage with respect with respect to an instrument to which subsection a or b of this code section applies holders persons in possession of the well as judge carnes elicited they are not a holder a person in possession of the check so even if you accept their argument that you could somehow read three four hundred forty or that one sentence separately away from the entire did he looked at it and he said in addition to that i'm going to go to the comments which as we know in georgia and he looked at all the examples in the comments and all of the examples were drawn issue or persons who are paid possess the check anywhere in the country has ever accepted the argument that's been made here and found that three four or four d persons bearing the last opens up an unlimited category to suit anyway merrill lynch anyone who took this check if i if someone gave me money tomorrow and said put this in your account and buy a christmas present for my child if instead i put the money in the county not i go and i have a nice dinner does the restaurant have to pay of course now that's why the argument fails its commercial paper the eleven three four twenty argument is equally insufficient and the best analysis on that is the most recent analysis by a circuit court and that is in the american national insurance circuit judge would  there and this is what they had to say about that argument which applies to the argument here the novel interpretation of the familiar draw or draw even dorsey pay relationship is unprecedented and for good reason it it had no clue that midwest featured and the fault if there is one in the last was not related to regions banks lack of knowledge it was related to the appellants lack of having control over those funds once it relinquish them to midwest feeders into an account in what's it really wish them to mostly cattle into an account in mostly cattles name with mostly candles address on it in georgia and allowed mostly cattle to write check said you plaintiffs don't fall within the categories of people and therefore and this is a comprehensive scheme so therefore the rest of your common law claims are preempted and they've done that analysis or they've gone to lose bring this common law cause of action judge show flat and had an interesting question regarding to merrill lynch that shows why you can't bring that common law called because if you could you would supplant all the protections both the banks and the definitions of parties under how commercial paper works and you would have different statutes of limitation depending on what type of common law claim you could rise there would be different burdens of proof all of the reasons why perhaps the first court in first federal court in georgia to address this didn't extensive analysis judge beverly morton when she said in the northern district in the promise work and she looked at this whole question of whether you could have the separat and she recognized as every court has this look when you have a statutory scheme that comprehensively defines the duties and obligations with respect to certain transactions and however we look at it we certainly have to agree  with respect to banks taking commercial paper checks there is a comprehensive scheme that defines what they can so when that scheme exists then you cannot bring common law claims because it would serve to thwart the common law sh be for the u c not supplemental we've cited to you cases in georgia on that principle dudley case we cited two cases from the district court we've cited to you cases from other circuit courts there that is a very stablished and finally the question of lack of duty judge abrams rightfully so said that that is a question that has not yet been addressed by the supreme court of georgia therefore she had to make an eerie guess my first point to you and it goes to what judge joe flat said a moment ago i don't think you need to go there to resolve this case to determine whether a bank over a duty to a non customer however we submit to the judge abrams absolutely made all point to the fact that they would not allow a customer or to the non customer have a duty imposed upon them that is a general duty there are there are there are very good your honor regions bank dwells on the this language in jusice eleven three three zero one about the person entitle to enforce the instrument and there is a difference between a person entitle to enforce an instrument and entitled to bear the loss of failure to exercise ordinary care you can argue all day long about the wisdom or policy implications about excluding person entitle to enforce an instrument from section four hundred forty but we can argue argue about what the statute says and we have to assume that it was excluded thoughtfully and harmoniously does not mean that you go search for conflicts where none exist it does not mean that you ignore plain language and it does not mean that you insert non existent statutory language into four hundred forty persons entitle to enforce instruments can continue being persons entitle to enforce instruments and all of the other sections of the u c c where the georgia code or that where the georgia legislature actually chose to include that can continue operating regardless of whether this court allows this case to proceed past the pleading stage i would like to address one claim that  version of the code not the current comparative fault scheme in four hundred four d and and so in that time though since one thousand nine hundred six in addition to having no court that says you can pursue a claim like ours no court said you can't either but what we do have is is a legislative in case law mandates that remedial statute sort of pursuit or construed broadly and in favor of forward i would know that all of the cases on the the negligence issue in that come from georgia that were cited by regions if you read those closely they all have one common thread and that's that they have  discovery and proof and a factual record and if the claimants in those cases fail if the court found in favor of the bank in those cases it's for lack of evidence or lack of proof and in many of those cases there was actually a jury trial and so to say that those cases stand for the proposition that a claim of negligence in a unique situation like ours has to stop and a strike is at the pleading stage is in thank you you're on