know where is the injunction i want to find an injunction and i must say i couldn't find one and the very fact that the parties are just debating about what the terms of this supposed in injunction and didn't get it and it's not clear to me how the defendant which is not subject to an injunction an appeal we agree with the court of the court find it to anybody notice that there was no injunction and ask the district court to enter one you know all right i've got a second question asked the security ordered by judge leave then post no well that also leads to the question you know is there an injunction role sixty five she says that the proposed that the validity of an injunction depends on security being posted said it doesn't say it depends on security being ordered it says it depends on security being posted and there is a lot of authority for the proposition that if security is not posted there is no  you could also get the court on that but you didn't make either argument in your book but we made the argument we may need some supplemental filings on both whether there is anything complying with rule sixty five d and whether the injunction proponents failure to post security so please cancels any judit will really but it looks to me like there is a very good chance that there are no merits in need of decision in counsel if you ever want to argue the merits this is your opportunity we won't hold a second oral arg as i was saying the district court granted relief the capital crime has zero likelihood of success to a county and in fact the district court granted relief the capital premium did not even speak in the underlying action injunctive relief did not state so in any opinion it was only a judge lee's march twelfth two thousand and eighteen clarification order that the district court first explicitly stated that the injunction required make direct to continue purchasing  the maximum extension of the arrangement but it requires that capital premium provided written notice by january fourth two thousand and sixteen so you stand on the date of january thirty first of six rather than june first of eighteen which at this point we're about four months past that date lawfully issue a preliminary injunction where there is no likelihood of success first i would like to address the issue of the part of purchasing a service in obligations having expired a court cannot immediately with notice under this plain reading of the contract the longest possible terms of the party servicing a personal relationship was june first two thousand and two approximately four months ago sixteen and required bank the right to continue purchasing a servicing through the end of litigation regardless of the fact that capital premium ultimately seek rescission in this case on that option regardless of capital premiums unwillingness to do so but the court's order relies on exactly the type of reasonable contract interpretation that new york under new york law book or should arrive at a construction which will be a fair meaning all of the language employed by the parties to reach a practical interpretation of the expression of the parties so that there are reasonable expectations w realized a court should never interpret a contract in a manner that would be absurd commercially and reasonable or contrary to the reasonable expectations of the party and a construction of a contract that w party an unfair and then reasonable advantage over the other or that would place a one party at the mercy of the other if at all possible should be avoided but this is exactly the type and reasonable to be set up in a way where there would be a relationship five years that the internet five years thank you directly the purchased capital premium for the two companies would wind down the relationship over span of time no longer than two and a half years and that's where you get th obligations the january thirty first two thousand and sixteen date but even if you're on agree with the district court that that extension was not necessary to extend past january thirty first the contract was always intended to have a maximum extinction terminations date of june first two thousand and eighteen and we're already four months pas or what's what's the next stop for this year we have withdrawn any claim for specific performance and this relationship is over just got to actually acknowledge this in order saying of course these companies will not be working together court to the need to comply with rule sixty five d you asked for an injunction and didn't get one you would think that would be very high on the list of worst things to do your honor i  the answer is i don't know i was not on the case but with regard to my act with was a regular partners what i would say as we what we received from judge gottschall as stylus a memorandum pinion order the last paragraph specifically dictates activities that my other question is do you agree with mr morris that statement that no security has been posted that your honor no security has been posed to the distro what do you think about rule sixty five which says no security just i do not understand how this case can reach the court of appeals and be fully briefed without the lawyers for either side having thought about the meaning of rule sixty five c or little sixty five or they are not hard with regard to the issues that have been raised on appeal by bank direct bank director bank direct appeal presents really two issues as we see it for this court to decide  first is with regard to the arguments that have been raised before the seventh circuit were those arguments waved below by frank direct intentional relinquishment arguments new and actually there has been no appeal up the district court irreparable harm findings there has been no appeal of the balancing of the harms there is no appeal of the success on the merits as to the agreed question that was presented to the district court on indemnity and there been no appeal of the sliding scale in terms of evaluating the weight of the likelihood of success as compared to the weight of the harms issues and in that context and given the preliminary injunction stan circuit if the panel is to address the merits the question as as has been presented is does capital criminal have any chance of success on the merits there is nothing on the other side for the second circuit in the panel to weigh against that and so that's how we understand it as the issues presented they only relate to success on the merits and therefore the question is has kept a premium did it satisfy its obligation with regard to proving any success on the merits below as there is nothing to weigh on the other side addressing waiver first panelists familiar with the standard waivers affirmative relinquishment of unknown right here bank direct attempted to justify the actions that took on may first of twenty seventeen by enforcing its contractual rights on may first of twenty seventeen under the master transaction agreement it's sought to enforce that consistent with its position on may first of twenty seven jane in november of two thousand and seventeen bank direct filed a actually sought his release to have the district court declare that the master transaction agreement is valid and forceful and in full force in effect those are paragraphs one sixty nine and one seventy three of docket one sixty pull out that was november twenty seventh as part of the preliminary injunction briefing and then judge got chills opinion note that the parties were in agreement there was one issue to be addressed with regard to success on the merits and that was do bank direct contractual rights that it sought to enforce to indemnity allow it to take the actions  only reason that was presented to judge got trouble was in forcing the contract and by definition that that's an express rejection of a claim that the contract has terminated terminations of capital pretty much a service on page five of its reply brief bank direct says any waiver based on the narrow statements in bank directs brief now those narrow statements were judged  only thing that you need to consider with regard to success on the merits is indemnity that's what they told just got and now what they told the panel in the reply brief this anyway for based on those statements would relate only to the justifications for the actions taken in may one and the actions taken on may one include an attempt to terminate the service and relationships with regard to service and it appears that at least with regard to a bank direct reply brief there is not a dispute with regard to it has that been waived but let me address briefly the two arguments that they do make terminations how has the terminal terminations argument been before there was no existing bill up that may terminations of an agreement on january thirty first twenty sixteen more or less clear that argument was known and when bank director told the court we intend to enforce our rights under this contract and that's how we will prove that capital premium does not have success on the merits that was intentionally released wishing the ability to argue that the contract is terminated and that basis for both for servicing and for purchasing so any argument that when purchasing a rose we had a different germination argument that we we didn't know about before that that from our perspective is an empty argument nothing raised those issues now with regard to purchasing specifically bank direct raises an additional argument with regard to purchasing and that's the condition precedent that was an argument that was first raised only in front of judge levy with regard to the motion for clarification that it only relates to the purchasing obligation does not relate to the service and obligation in this regard thank directs arguments that some shifting below sort of perked it up to the idea that purchasing was was involved in the in the case or in the preliminary injunction  requested we will suffer a lot to try to argue balancing of the harms they argue we will suffer harm because we will continue to have to fund and purchase millions of dollars worth of new loans that's at docket one forty seven it's in the response appendix a three fifty four in three fifty seven thousand direct did not plan at that time that it had no obligation to purchase any loans so you can have it both ways you can have it that we can use purchasing and inject purchasing into the case to try to avoid the injunction on a balancing of the harms but not race it with regard to success on the merits where we have specifically limited the basis for our defense and just to be clear the only thing that's up on appeal is success on the merits so our position is that the that that relinquishment of that condition precedent argument they understood that purchasing was going to be implicated they understood presumably the terms of the contract that they're now arguing to the panel and choosing strategically choosing to limit the basis on which they sought to avoid the preliminary injunction they have affirmatively relinquish those and waive the arguments that they now press and there is no case that bank direct cites that allows a party who knows of an argument that could avoid relief affirmatively limits and excludes and presents only a single obligation to continue to purchase loans that your honor the obligation to continue to purchase loans and when one of the dates under the loan purchase should be terminated is the loan purchase commitment terminations did so are are we passed that date or is the latter scenario of as long as the termination the transaction facility date is that date apply because that's being kept alive as a result of the occasion i believe your honor is on point with the latter it's not to say that the loan purchase commitment germination date could not occur in the future it could it could occur in the future it has as i understand it what the understand sort of what happened during that relationship there is a multi million dollar book of loans that is shared between the parties right now and so both parties certainly contemplated that whether it ended in a purchase or whether it ended in a non purchase there would be an agreed upon wind down and that's what you see in the extension they had they said we the parties never contemplated that that this was an agreement that could could go away and bank direct unilateral choosing overnight and briefly your honor and asked about the different dates in the purchasing and servicing extension date and that date the date that's the date they rely on for the twenty eighteen june one of twenty eighteen date that date again assumes that bank direct is not intending to exercise the option we have never been in a world since january or twenty sixteen where banks direct did not intend to exercise the option they still through their damages claim they are intending to as their nov support as is also the party's conduct in new york law recognizes that the parties conduct here is that for approximately twenty months in one thousand months after january thirty one of twenty sixteen the parties continued to perform as if the loan purchase commitment germination dated not occurred and it was only raised after the fact after this preliminary injunction answered that or excuse me  raised let me briefly touch on the condition precedent argument i our position there is first of all just to remind the panel that only relates to the purchasing obligation the  aspect of the injunction in that regard bank direct presents what we see as a false choice but what they say is it's sort of a heads i win tails you lose  and therefore all the reps and warranties that you made previously about the agreements being enforceable somehow become untrue at the time to make them i think that you know we do not know how this litigation  is sort of the the overriding point we don't only seek rescission of the option agreement at docket one seventy two paragraph one seventy nine we make clear in our counter claims that or alternatively we see and we did include an example in our response brief of an outcome whereby the either or the bank director has presented would not come to me and that is the option agreement itself could be enforceable but that bank directs conduct in either presenting a modified asset purchase agreement or through some other breach through some other conduct of its own as precluded its ability to exercise that and so we see this as a false choice finally that the argument they're making would allow them based on sort of the speculation about hypothetical outcomes that would allow them to conceivably benefit by ensuring the condition can't be satisfied by their own misconduct and new york law does not allow and particularly on the but at the preliminary injunction stage page twenty three of their reply brief they raise a litany of factual disputes as we see it with regard to their conduct and whether their conduct is quote unquote bad enough right to  unclean hands or something like that right but that's a factual dispute that that's that's not even appropriate for summary judgment let alone a grounds on which to reverse likelihood of success at the preliminary injunction stage so i he confirmed on the record with but the bank directs counsel didn't you argue in front of judge doctor that you would be harmed by the purchasing and and he said yes and that that is the definition of waiver you didn't argue it for success injunction by requesting specific things and arguing that because we did not argue against other possible injunctive relief that they did not did not make a showing of the likelihood of success on that that we so capital premium in its own complaints six relief of recession and damages no where in there is any seeking to continue a purchasing a service an obligation and bank director certainly does not exercised so the idea that it was a date that could be bought out in the future is not true it was always posted be within thirty days and we're talking january two thousand and sixteen which goes hand in hand with the january fourth notice requirement the january thirty first two thousand and sixteen determination date in the event that there is no exercise an option so exercise an option did not make the relationship go on in perpetuity it was only supposed to be a thirty day this relationship could easily be ended in a thirty day period yes this was this this agreement was always intended to terminate no longer than june first two thousand and eighteen and under to what everyone thought was a likely scenario january two thousand and sixty to address the notion that there's an implied contract because we kept doing business while in litigation this case when the litigation shortly before in the exercise tapes of november two thousand and fifteen rights and obligations of the party they continue do business it's still possible to find the certifying this will imply that this was terminable at will and the court in that situation will look at things that like the circumstances surrounding and understand between the parties