material fact that should have precluded the entry of summary judgment appellant is an oklahoma based insurance company the money here is the church premium dollars that work to be invested in conservative investments the residential mortgage backed securities were those investments bank of new york mellon is the trustee of approximately seven hundred and fifty of the arm b s trust originally sold by countrywide exclusion of the rest of the p s a terms the important sections of the p s a and what we're going to ask this court to review the section seven point zero one event of default section eight one duties of trust mellon to take action when it has actual knowledge not written actual knowledge of the occurrence of an event of the fall there's no requirement of written notice in section tempore no five  its purpose what's its function if it's overwritten by everything that the st knowledge elsewhere in the agreement well that's an interesting question your honor and drugs in the southern district of new york recently a national credit dollars the trustee show use its best efforts to promptly provide notice to each rating agency with respect to each of the fog of which it has actual knowledge there's no requirement for it to have this written knowledge there is a requirement it's a go to roman and eight and i have a hard time adopting your your interpretation of the p s a which essentially says that wasn't in you know that serves no function it seems to me it's it's talking about their various aspects of knowledge here and within the p s a but when we're talking about knowledge of an event of default they want that to be crystal clear because and because it's a very important point when there's an event of to fall when you have knowledge of an event of the fall the duties of the bank changed dramatically ok and that's why that's why you're arguing it had no knowledge of them before so it wants that to be very very crystal clear they don't have knowledge of an event o event and it's not out of the ordinary or unusual that people would require events of default to be preceded by written notice to responsible officers well st and and i'll come back to that there was actual that it wouldn't period within sixty days but in any event the new york court said that that was all resolved through a settlement or something in that that notice had newly leader legal affected well that's where the national credit kind of all of this disappears when national credit union came in to set aside the new york court decisions and that was just decided last month so you have in this situation bank of new york mellon is the party that does the actual exception reports it is shewed the exception reports ten five talk about actual knowledge it had actual knowledge so now you would wind up with the absurd result where  to countrywide so it has if you want to say it has written notice it does because bank of new york mellon is the party that writes the letter of the exception report bank of new york mellon is where there has not been a cure of that in sixty days how do we know it's been aware that there has to be a cure we have testimony to that from bank new york moment that they knowingly did not follow up on the exception reports because if they did they know they weren't being cured so they would simply send out and what's wrong with that well then that they know there's an event or they have a duty yes they do have a duty under what provision and again ten zero for their to that refers back to eight dollars woman at eight so once they did that that's why getting the notice of default is so important because at that point ten o five a is satisfied and they have all these lists of duties under above that it sets up a new version of this agreement shall be construed to relieve the trustee from liability for its own negligence its own negligence failure to act for its own continuing under part too which again brings us back to what was discussed in the national credit union case that was decided in october by the southern district of new york because it goes the other way from that lodge so we now have if you want the western district of oklahoma saying one thing ten of thirteen cases from the southern district of new york which considered the most recent cases in favor of the bank of new york mellon and were ject at that so now you have the two courts going the different way over the same clause it be our position that eight one in ten  five are independent from that written requirement because if you have the requirement of writing who would provide the writing here the only party that would have the information of whether or not countrywide was responding to the event of default the exception reports would be the bank of new york mellon in which case then the bank of new york mellon would send itself a letter saying by the way it's the only entity that would know that this that the problems had not been cured within sixty days that's correct it's left up to the bank of new york mellon to then a the credit rating agency in the certificate holders like america's zero dollars so the letter here said you better do this within sixty days and what was it it's it's a cure of the various defaults they don't have the notes in the underlying mortgage file they don't have the credit rating they don't have it in their own country rights on file right which and back to new york mellon takes possession so the bank of new york mellon has the grand knew that there was a problem how did they know when you said bank of new york was the only one who they were making demands after the fact of the crash so they were making demands and getting access to the files itself and that's how they learn that and i could and that's also how they would learn whether the problem had been cured is that right that would be correct so the bank in new york would be the only one who would know that there had been  cure well you would need to have twenty five percent or more of the certificate holders to make the type of demand that gibson brute's mate and that's what they wanted those with those pieces that gibson and br complained about those were among the p s a is that are the subject of this lawsuit or those with those different p s a's i think they're different i don't remember exactly there are seven hundred and fifty of these so i don't know if we have the information exactly so this record does not reflect whether those p s a notices from bruce gibson broun's included p s a's that both american  what i'm saying is i don't recall you're out of it but since you just have a minute left let's assume you don't prevail in the event of the full part what are your remaining if any claims you've won under the trust ind mathew ingram from mayor brown for the bank of new york mellon the district court's decision is consistent with the holding of four different courts that decided the same issues on appeal today involving some of the same contracts that are before this court but we're told that they're inconsistent with a whole bunch of cases in the southern district of new york is that right or wrong it's wrong it's wrong the commerzbank decision is not inconsistent with the holdings of some of the federal courts in new york those federal courts there's a number of decisions coming out of the southern district of new york and you're saying that this whole thing is not inconsistent with any of them  a contract that requires written notice before interest you have knowledge of the event of the option for written it's not inconsistent with any decision that has ruled on the question of whether the trustee in these countrywide related cases receive a written notice of an event of the fall so it's completely in line is it inconsistent with any of the holdings from mobile so the district of new york cases which i admit i have a grip no indentures an allegation that the trustee had actual knowledge was sufficient to state a claim for breach of the indenture even in the absence of a written how is that consistent with your position to beat the b n p decision knowledge language if we assume that people only way to have actual knowledge is through written notes and the b n p hara backcourt distinguished all of the cases that we're relying on  on appeal here for example the argonaut decision from the southern district with that language what about the language in phoenix in phoenix like the judge total so does it have the same language a but i'm questioning whether the distinction you're making was one the judge code was making was his contract cut the p s a that was before the court in phoenix like v there was written notice of an event in the fall all of the cases that have gotten beyond a motion to dismiss through discovery on this question in the case of bank of new york mellon in this question of whether the bank of new york mellon received written notice of an notice how else would that come about we have the letter here saying if you're within sixty days if it wasn't cured in sixty days how who would know and how it would prove how would you proceed from that the certificate holder sending the notice for example in this case it was the certificate holder since it was the gibbs and bruns law firm representing blackrock and go and met life in a number of other sophisticated institutional investors who have the economic interest in these transactions unlike the trusted they ate sent a letter to the service or and to other transaction parties alleging reaches by the master service or and stating in that letter that if those breaches are not cured within sixty days that could lead to an event to befall the certificate holders were involved in that process every step of the way that most of how with the fact that it was how would that come up and what would happen then so to say it wasn't cured how would the certificate holders know it had been pure the certificate holders using that specific example which we know from the record  the certificate holders were then gave each directly with countrywide with respect to the allegations in that letter those negotiations eventually led to a global r and b s settlement and several one hundred countrywide occurred in their view and if it had occurred in their view what would happen then they would send a letter to the trustee if they want the trustee to if they want to trigger a prudent person obligations on the part of the trustee it want to percent holdings in these trusts most of the letter that went out required twenty five percent the letter that went out at twenty five percent and that's when a five percent requirement makes a lot makes sense you don't want very small holders of files right s lawyers have authority to do with the same clients to obtain the notice of default and it makes perfect sense to leave this decision in the hands of certificate they are the ones with the economic interest in the performance of these trucks they're the ones who are monitoring the service or and the performance of the trust they're the ones who are best positioned to decide whether it's worth pursuing investigations default has certain responsibilities and after the curing of the events of the fall that they have occurred then shall undertake to perform such duties and only such duties as are set forth the agreement so how does how does that operate once a certificate holder gives notice of default walk us through what your position of what i have so once certificate holders cured what happened it could be cured within ten days of the notice and then the trustee under those circumstances would presumably receive a notice from the certificate holders that it's been cured so and that's why if you look at if the court considers seven o three b of the pooling and servicing agreement says that upon the occurrence of an event a fault known to the trustee to trustee within thirty days believe it's thirty days needs to send notice to certificate holders that an event of the fog is insured unless it's been cured so this accounts for the possibility that certificate holders may send that notice to the trustee that invent the fog has occurred but the reaches the alleged reaches that gave rise to the event of the fall could be cured by the master service or in which case no notice needs to be sent to certificate so again this is the evening i'm sorry explain it again short so after the trustee after the certificate holder prism through which we ask this court to consider the appeal before an event of all trustee has very limited very well defined duties it is not the originator it's not the seller it's not the service or a po box it has no duty to monitor any of the parties to the transaction it rely conclusively on statements that are made to it but it does have duties to keep its files straight and send the thirty and sixty day sort of occasions about the facial sufficiency of these notes of these mortgages yes it has that it ministre to function of receiving files that are sent to it by the deposit or not the master servicer and i'll explain why that's relevant in a moment and then it has to sen it could be well it's not it's not your fault by the master service or because the master service or remember we're talking generally about countrywide but there's countrywide at seller of the loans and the trust deposit her and master service are only a master service or breach could eventually give rise to an event of default only the deposit or has the obligation to deliver files to the trustee so that breach to the extent it's a breach is not a breach that can give  event of the fall and that's a flaw in american fidelity's argument they refer to all of these areas of vents that could give rise to one event events of the faut and nothing related to document exceptions can give rise to an event of the fall because it is not a service or so i could answer your vital directly certificate holders could ask for information let me it's so could less than twenty five percent could a single certificate over say i'd like this information or they have to be a twenty five percent no holders information it may not have the duty but it certainly has the right to do that but this document exception issue is is not something that bears on any of the event of default issues in this case there are that because it is this question say there's the noticed as we had here current sixty days it's not sure within sixty days is there still a strategic or tactical judgement call to be made by the certificate holders of whether or not they want to notify the trustee of this event if the fault is it sometimes in its interest not to have not to give alerting the trustee so the trustee as i as i said has it ministry of duties that are laid out in the agreement it's not servicing the loans had one second just be where you're out of time and  ahead and answer the question so as to post it it has no duties to monitor the service or it doesn't have the expertise to engage in the service and activities that certificate holders may be the provisions we have here but if i can answer your question to counsel judge charged the trustee has no incentive to declared to fall because if it does it becomes a prudent person and it has to do additional fifty trusts here that's thirty seven million dollars bank of new york mellon got paid but it doesn't want to take on the additional responsibility of doing more work it's all money to them on that so what we have is the trustee does not want to take on the additional responsibility it's not that the certificate holder who's the passive investor wants to do anything on its own you did not cure this you must now replace some of these underlying mortgages which is what did not occur bank in new york mellon never require never require countrywide to replace any of the defaulted faulty mortgages is any of these tools because how did done that it then takes on responsibility more work which it claims it's not getting paid for it's only getting thirty seven million dollars a year which is a lot of money outside of wall street and scarsdale and the brownstones in brooklyn you expect a lot for a one million dollars a year and we didn't get that cases submitted counselor will turn