i wasn't going to give a factual explanation but given what justice christian said a moment ago on the other case why don't i give a little bit of factual background before i delve into what i think are the key issues here briefly this court concerns the union bank's refusal to pay mr florence on a certificate of deposit that he purchased in september one thousand nine hundred three it's a two hundred thousand dollars for typical deposit a huge amount of money for the floor it's very much he bought the certificate by selling some of the family's farmland mr floors are original appellant passed away during the pendency of this appeal that he was a farmer on the island of cyprus five years and five months after he bought the cd in february  hundred nine he went to the bank to inquire about his money he met with the same bank officer who had sold him the cd in the first place she told him that she couldn't find a record of the cd so he asked well what should i do and she said and this is key you should go find the cd and bring it to the bank that's all she said she did not tell him there was another way to get the money back by signing an indemnity mr and mrs florrie's finally found the cd nine years later  two thousand now if we fast forward to the district court's decision the bank brought in motion for summary judgment two motions actually formations but the court ruled in the bank's favor finding that the statute of limitations had already run and also alternatively ruled that the case was prevented by the doctrine of latches now we can turn on this appeal that the bank officers instruction that he should find the cd and return to the bank means there was no refusal by the bank or viewed another way the bank officers instruction coupled with mr and mrs flores as good faith reliance on that instruction prevented mr forrest from understanding that he had suffered an injury so without a refusal by the bank and without knowledge of his injury floors his causes of actions did not accrue in february of one nine hundred ninety nine how is it that how is it that your client didn't know he was and he couldn't get his money that's right he lost the certificate he and he couldn't get his money so i think i understand the other part of your argument that he's relying on what they told him to do which is go find a certificate and that took some years in this case before his life finally found it but how is it even know he was injured he couldn't get his money he  that jumped out of the record at me that she remembered absolutely and then it actually had no record of it at all that's a lot of money it is a lot of money and we're very concerned that the bank didn't have a record by something and he was injured wasn't he wasn't wasn't  he what i think what mr and mrs florence thought was yes the bank can't find it so they they they didn't know they were injured they knew the bank could didn't have a record but they thought that their cd which that bank officer had signed and which they had the your money you weren't just checking on the status of the account was like and i couldn't account balance or something like that but he was asked but he was asked whether he went in there to get his money and he has a pretty clearly yes i went in there to get my money that's why i went in there i wanted my money isn't that sufficient to be a demand that's what the district judge found and she ordered to be relying on what mr florida's testifies she's not making findings of fact she simply taking refusal no he says he went in to get his money and he came out without the money right where he came out with was go find the cd we don't have the record where we're name call but i think that's a refusal to give him the money unless he does something else which is to come up with a cd well so yes i take it i take it your argument as i understand it is that one could view that instead of viewing it as a refusal view it is a conditional acceptance we'll pay you as soon as you find cd yes sort of like i want to sort and then mom says as soon as you've eaten all your vegetables you can have your dessert and if it takes two hours the center and hea it would be too there's probably several ways to answer that question we would contend that the just record erred in finding latches was a valid defense at all because the bank has unclean hands because it caused a delay by telling him to go  bank actually made a refusal it did not make that refusal i would contend intil they had answered the complaint for until mr floors was forced to file his complaint well before that there was a written demand and if we look at the second circuit's case garcia versus chase manhattan bank the court in that case said a refusal needs to be clear and unequivocal with what's unclear about back to that letter but it clearly that loop is ever closed here in this record is that and i'm missing i'm sorry i mean it's a very thick record i don't know whether it's in the record or not but i did see a letter written by a former chief justice still in cruise who was representing mr florence initially in this matter and he had written a letter to some agency in the state of california asking about money as instructed by them and did we get a letter back from the bank or from the state of california and do we we have and i do not know and i think i haven't seen that myself i just saw that the other day from hearing for this argument you know so the letter from the union bank going back to that just briefly you're right it doesn't say you know we're not going to pay you it just says gee whiz we don't have a what the banking law would require or socks or any other law you know the banking is a highly regulated industry and we would like the opportunity to have a proper hearing on latches to determine exactly what the bank does it has allegedly a seven and a half year document retention policy it's put that out there and what would why would latches even be the appropriate remedy that's an equitable remedy this is not an action equity precisely that's what we  whether there's a regulation that requires the bank to do that or that permits the bank then to divest itself of its records after seven a half years why doesn't the bank know whether this cd has been redeemed whether was she did to the state whether somebody else came in and claimed it whether they we don't have any further records of this and therefore we're not responsible for your contention is until we've made a demand and the six year statute of limitations plus six years you have got to keep the records there why are both sides so confused over what the obligation of the bank is to maintain these funds or not maintain these funds only five years and five months after we bought the cd the bank didn't have a record we don't know if that record was why that record wasn't there it was not there either because the bank lost it which is negligence or it never made the record which is fraud and we don't know the reason there was no record your honor the document retention policy that the bank has tried to defend itself wouldn't come into play at all because he lost the record in five years and five months but that policy is seven and a half years ok so that might suggest i'm negligence on the part of the bank but your client doesn't come in for many many years later well after the seven and a half year document retention that you would get the benefit that rule under your theory if the bank can if the bank can divest itself of its records after seven and a half years i'm trying to figure out you want an unlimited time for him to make that demand then six years after he makes the demand and is refused in which to bring his lawsuit so that's that's time of demand whatever that is that could be fifty years plus x well no your honor what we want is we want the clock on the statute of limitations to start at the time the bank made a clear refusal right that's right but if he did it but he doesn't make a demand they can't make a refusal so if he doesn't show up until fifty years after he places the cd right the bank can't refuse him it's a certificate your honor and it says on the face they'll pay the beer mr donald flores right on presentation of the cd right so your theory is he can show up fifty years later and then he has and if they once they refuse him he has an additional six years to bring to bring a suit that would be fifty six years right and my hypothetical i think that mr flores would have liked to have had the money a lot sooner i got i got that i'm trying to think i'm trying to figure out here and there just seems to be an enormous amount of there's a huge black hole in the middle of this record which is what is the obligation of the bank to maintain the funds in near perpetuity until a demand is made and i and i don't and it's i think i think the sense that there's no answer to that question as just strikes me as really unusual that a bank wouldn't know how long it had to hold your funds and keep a record of it honor we i i don't know how long i think it's required to hold in on your thinking ok and you worked and under your theory of the case under my hypothetical the bank would have to hang on to it for fifty six years i think a bank should pay back people but she had limited information when she made the decision and importantly at this point many of the arguments that are being made now by the appellant were never made and we've to those arguments of course i'm sure when she's the key question about when the statute of limitations occur and when it ran that's been the center of the case the whole time yes and so there's no question that's in front of us and our i guess i have still some concern about the fact that where when the initial request was made how do i get my money right the bank had no record even though it was clear that the plaintiff paid money and have a certificate of deposit that was issued to him and that if you could find it he could get paid right then well ok so so when he is told go find the cd and we'll pay you essentially why is that a refusal but a couple things first of as proposed by mr fluffers for the purpose of the motion she remembered him and she went and looked she asked for social security number and she went and looked in the records to see at that time whether there was any record i believe it's on the record that the search yes  and then you can get paid well first of all i don't believe that the refusal is a necessary element of the question here the question is under the statute was a demand made that day and i believe judged by these record when you look at the record from the deposition unquestionably there was a demand made that they only also use your position that if someone says give me my money and you say sure the checks in the mail will get it to you that for if they have the bank in forever some testimony he gave after the fact that is the position about did he want to get his money in touched by this review that testimony right now i think is his testimony is in terms of what he said to the teller that there was how do i get my money and her response was you need to bring in the c that there's a distinction there so that's just my point before you got it but also that he asked for the money and she said she can get it done and out let's get back to my question how is he if you if your position is that you at's a various odd way to run a railroad and i understand the court's concern and what case law supports that no refusal is required well the statute itself is requiring a demand a demand that starts the talk that the cause of action running and there's no you there so there's some viney of case law out there that suggests that demand in this context means something more formal that evolves knowing that you're not that your demand is not going to have a point first of all the body of case law not sure what the course referring to but it was course never presented to judgment going yeah at the time secondly and i point out that briefing section thirty eight zero four as of even even had mr for those never gone to the bank once the cd was lost mr flores had the ability to immediately file suit against the bank to obtain payment that's under section thirty eight of four so when the date that this occurred he had the ability to see he was lost which is what he says it was to maintain an action against the bank for payment of the cd except it seems really like a stretch to me that the years and then we were talking about the each of vegetables and then you'll get your dessert and i throw in one more additional fact pattern one factor that fact pattern and two thousand and one of course the bank left the scene oh my and we know that by two thousand a toll the statute of limitations i don't think it does and i certainly wasn't raised in judgment well you know but she rejected she rejected your theory which was that the once you mine because he opened an account with first one bank the successor council if you put into the fact pattern we're talking about feature vegetables you don't get dessert during the time the child is taking five and a half years to eat their vegetables mom and dad might have spent time we might have given him a way if you look at the record there is a declaration filed by a banking expert in which he talked about records retention all the factories of record tension expert talked about records retention policies talked about industry standard seven and a half years is the industry standard time ok but that but seven a half years sounds like it is an industry standard is different from a duty to maintain the funds for for demand deposit or for perhaps a cd certificate of deposit is a unique animal under the u c c i agree there are and if you look at the cases there are many cases out there where certificates of deposits are redeemed many many years later exactly right so do they ever owes it there's a reason for the demand requirement though and there's a reason that the statue of limitations starts running upon them and that's a good i suppose that correct if i so you had say he had never that he made an earlier inquiry where he was told to do the exact thing that you say requires the bank to i am which is present the cd so the fact that he had a conversation a few years earlier  counsel we've talked a lot about what does or does not constitute outside the record before this court to be clear yes ma'am sorry that's right we talked a lot about what constitutes a demand for it in the abstract but what about the face of the certificate as the part as evidence of the parties contract in other words it says what these guys agree to these folks agreed to is that he was going to present that certificate in order to get paid why isn't that the conduct that is required in order to make a demand and there's a world of demand as is pointed out and which judgment going to correctly rule is a different animal so he had to do both things according to you in order to successfully demand his money he had to he would have had to show up with a certificate and he would have had to which is presented and were to be present  or the person to be presented to is no longer available and that's the bank leaving the commonwealth as well that's section thirty five  obligations of her and also unite the the bank leaving the scene of my goes into the analysis of whether or not mr force is reasonable and his actions given the information i realize the considering you're not you're not saying that that means that that's a reason they would never have to pay you know if they did purchase i'm just saying i understand the court's concern regarding latches continue even today there's new arguments being made that were never raised before in previous weeks and to overturn a judge on arguments and facts that were not presented to her just flies in the face of the standard review and point out and i don't want to bang the drum too often but appellant was given three opportunities to explain and was told they needed to essentially in first in our motion to dismiss or strike them on the fly motion strike which was denied without prejudice then in our our opening brief to say you have to justify why you're raising issues for the first time why they want to raise below you could just as except that for purposes of my question i appreciate it so if if that's what time triggered the clock to start running and if i don't find a tolling if i'm unconvinced by the tolling arguments dump the consumer protection act doesn't the consumer thank yeah i think i would argue that it's clear the case law requires a refusal and that should be the law because without understanding that the bank was refusing to pay him he didn't realize that he was and your contention is is that is that is that a refusal is not the flipside of the command that is if you could have a demand without having a refusal that's a very good question on and part of it that way but i think a demand deserves a response it's usually it's a conversation there should be something that the bank replies within here the bank replied with go find your cd and bring it back to us that was the conversation and if the bank says we'll give it to you on friday that is not a  if the banks say come friday and we'll give you the money and then he came and they didn't give him the money then i suppose he would be put on notice that there was something wrong with here mr floors wasn't put on any notice at all because they told him to go f is me there's some ambiguity at this deposition about what he was thinking he wanted to accomplish that day and what he told her i get both senses from the record about about that but what does seem to be clear seventy seven is that his impression was that she told him can't have your money unless you present your cd that's right that's what she told him he would have a harder time ferreting out is whether he told her i want my money as opposed to him thinking that i think it's i think it that's a little bit muddy here he says clearly that he asked her what do i need to do to get my money yes it's always been our contention that he simply inquiring i mean he had a deposit there a cd for five and a half years he couldn't find it so he refusal but i would offer that if somebody told me that they couldn't find a record that would be a motivator to do the other thing the bank said today which is to go find the cd and in good faith they believe that they needed to find the c and in their depositions they're very clear that they thought they had no rights without finding cd what's the significance of the fact that the cd actually maturity and i think thirty two days or something and it matured right away but it was the family left it there for five and a half years yes they left it there for five and a half years because they had immediately after buying it they went to california for mrs ford's kidney transplant and they told the bank officer that they were going to be gone for a long time i don't know why she sold them a thirty two day c but she also told them that it would roll over in perpetuity i think that's a common practice among banks so maybe he thought oh it's going to roll over that's fine i'll just take a thirty