that could revive the collect a kleagle action to collect the bounty and that it seems to me is an adequate allegation under ninety five point zero four and then they allege that there's a violation of the fair debt collection zac all of that seems to be pretty mainstream and so i don't i don't see how you got to appellate concern about that but for your argument that they somehow they relied on for their legal theory this payment revised the time barred debt applies only to debts that are not time borrowed at the time of the partial payment when they came to saying what the violation is they said the violation is of the fair debt collection exactly and the fact that it's a sex toy or number is not the issue the fact is that they were proceeding on the allegation that the debt was time barred but for statute of limitations and revival purposes their legal theory was and they're saying that notice is what violates this florida law and when you look at that notice it is if it's under fact if it's under notice pleading alone you look at the notice and you could say i could understand that that includes a potential for a written acknowledgment of a previously time bar complaint it changes the entire character of the lawsuit  simply signing a check and sending in it is that enough there seems to be case law in florida that that supports the notion that that's insufficient to revive a time by that what exactly does it take i mean so on that issue it wasn't even clear but when the statute of limitations has already run on the underlying that is ninety five point zero four ok law would be in order to be able to sustain a cause of action instead at every moment leading up to trial the plaintiff reiterated the position that partial payment over time barred debt revise the statute of limit or florida law i guess i mean a trial  evidence at trial and on the a directed verdict or when i argued for directed verdict i mean the judge flat out said to them in in response to my argument on the directed verdict that their theory of the case had his own jury instruction which was the ninety five point zero five one jury instruction and gave that to the jury never did you ever tell the judge a judge we're being prejudiced by your interpretation of this complaint at this point because we have other discovery that we need if that's going to be their definition and we'd like the trial postponed did you ever make an factual argument i mean i understand how you claim you were legally prejudice because you think you got think you got a name their original complaint when you read it was wrong but putting aside your legal gotcha did you ever tell the court hey we are being factually prejudiced if you're changing if you're clarifying or changing what this conform to the evidence at that point that would have been an appropriate time for me to say well wait a minute they've travelled on this theory the entire case this is what the entire case has been about this is what you certify the class on this theory so where do we go from here do we go back and redo class certification as well because now it's a completely legal theory and we're going to have to do discovery on that they never went down that road they just sat back as the judge imposed his own new legal theory on the case and then proceeded to the jury under that new legal theory th also upon down at the bottom here and you're going to see look at this letter that this payment coupon is different from most payment coupons that it's got the full amount of the debt it doesn't have a line where you write in a partial payment it's got the full amount of the debt this is the letter the plaintiffs are going to show you that we allege is deceptive and misleading letter and then i skip down and i say so what's not in the letter well what's not in the letter folks is any kind of warning about what happens if you four required also signaled aging the date in in writing and with your signature i thought you were going to read something and somewhere there's a signature in here i'm a little can search about that because the form does not say you got assigned here or anywhere or human is if you wrote a tech maybe that's a signature but but i find i know you're leaving me not very satisfied where did you address the signature what you're saying that there i mean i know what your argument is your argument is it yeah we didn't talk about as likely as your but anybody would know that to be a substantial risk that people would sign either a return cover letter or a check or something else but was that ever law if you make a payment on a time debt that acknowledges the debt in writing that sorry and well then that the debts revived ltd design the letter  and it's clear the reason that mr goldman is incorrect but we somehow needed to amend the complaint all along because we had all this motions practice and the court judge byron told us repeatedly that the typically don't appear but the allegation in the complaint was the fur that collection practices act was violated did the complaint putting aside cable did the complaint then say because of a violation of florida law ninety five point zero five or did it just leave all of that out of there and just simply said that the fair debt collection act was that there was no statutory seeable and so so if we look then notice pleading it says you violated the federal fair that collections act here is the here is the notice and based on that we think it's a violation and then as you got to trial you notice this conversion does not mean judgment no no and indeed in fact they had another summary judgment motion out there at the same time right there when the court entered its ruling did the deal t d c wait wait a minute this was a conversion without the required notice in advance and were unprepared because there's other evidence we would have and we've been sent salute your honor and that is exactly why they haven't established a power far in advance of trial all of that happened months and months on montauk in about the conversion into summary judgment the ruling and the statement from the district court that they were traveling under ninety five zero four  so for a year between four and six months from the ruling on summary judgment and the clear statement of the conversion to the actual trial that's yes and there and that be a fair statement of the time that would be a fair statement and there was also a d where they basically said to the court you're wrong and the court came back and had two pages explication was there any statement at any point from your colleague that wait a minute i don't know what's going on here we're traveling under a news you know that instead why need more time i got to do this that or the other thing no your honor and indeed the abuse of discretion cases for conversion or motion pleadings are all about cases where you didn't get notice the conversion the court just sort of does the conversion so a sponsor a and then you can complain well they abuse their discretion to convert this motion for judgment on the discretion standard for the sufficiency of the allegations in the complaint which are a judge under rule a and the court the trial court or the district court found repeatedly that the case traveled under ninety five zero four they told that case go to trial and now we're in a different situation where we have this jury trial on the merits which precludes this court from looking again at the motion for summary judgment and instead we're left with looking at this after we have the record that's prepared at the trial and the record of the trial is that the plaintiffs presented the case under ninety five zero for the trial court gave jury instructions that were consistent with ninety five zero four l t d financial doesn't even argue about the accuracy of the legal about the jury instruction and so when the jury gets the case and when the jury renders its verdict it renders it under the right law and it renders it with the facts that support its ruling its judgment under the right law under ninety five zero four and so there is no air here your honor all this is is l t v financial coming back in again trying to as judge people do a gotcha and say well your pleadings were kind of weak and you kind of didn't say this right and you miss cited a case and we're going to try and hang you on that even though we know we have actual notice for sure that this case is traveling under ninety five zero four that your theory of the case is that it's trying to revive time barred debt by acknowledging with a signed writing and this partial payment that's the theory of the case we know that that's what's coming at us we have full notice to be able to of limitations had run what ltd financial basically chose to do as a trial strategy here is to say you all plaintiffs don't have the goods but you didn't put up enough evidence were like make that unilateral determination and we're going to make that unilateral determination and we are as a defense strategy going to put on no evidence none and as under the preponderance of evidence standard basically you have a situation where even if the pla and on that but did they get evidence in by cross examining your witnesses no your honor there there was no affirmative evidence and nothing conclusive relative to the cross examination of our witness at the cross examination of miss baez basically elicited from her what she said entered up which is she didn't remember specifically the purchases that she made using this credit card didn't remember this specific credit card however under th testament was clear as to other issues that this card was in her own name that she never had a business credit card that she never used these credit cards for business there was plenty of evidence adieus from his biases test that support a motion and said your honor under panto's a you should actually rule in favor of us because under the plain language of this letter they don't have any warning about reviving this time our debt and so you should rule for us under pentodes and the district court said no first of fact you have this particular dunning letter with all these little component parts settlement language payment coupon partial payment plan and that is where the jury comes in a yes this is deceptive and here was nothing that acted as an amendment of the complaint to insert was it clear though or just help me through actually was it clear substantially before the trial started that this case was moving forward under ninety five zero four absolutely not everything that the plaintiffs filed with the court after this suppose a grueling reshuffling the deck stuck to the old theory that's not what i'm asking you did not the trial judge tell you that this case was a ninety five zero four case he told me that what we got from the judge in the ruling was that i don't disagree with you but i'm not granting your motion there was nothing in there that other than saying that it seemed to the order seemed to be more about the fact that seemed that we were arguing that because they cited the case that was the defect in the place and it never was it wasn't about the cit was about the theory that they cited the case to support the only the only notice we had going to trial was this case was being tried on the claim in the complaint because that's what everything the plane of submitted after the dispositive motion was ruled upon was i take it there was a pretrial stipulation case was there was it the trial stipulation referenced ninety five zero for the pretrial stipulation was the same thing that the complaint was it was partial payment on a time that in no every nothing changed the fact there was no reference in the trial step that this case was proceeding in the ninety five zero four ninety that no there was not the only looked at it i will that was a joint step or two separate step it was a joint stipulation did it not reference the appropriate body of law it is not make reference to ninety five zero four when i look at it my going to find a reference to ninety five zero four of my not going to find you're not going to be cited ad nauseum in our reply brief all the all the instances where the plaintiff in leading up to trial re asserted that her cause of action was partial payment on a time barred debt revise the statute of limited of florida let me ask the question this way when the when you submitted proposed jury instructions to the judge and then the judge gave you a shout of instruction they plainly referenced ninety five zero four at that point i'm told but you didn't contain the number right but you could not read the instruction and come away with any conclusion other than that the district judge was referring to ninety five zero four i could not come away with any other conclusion other than that along with the conclusion that the judge had decided in recognition that the paint plaintiff's claim was fatally flawed you did you object at that point an accurate statement of florida law but it is not in any way reflective of what plaintiff's case has been and i can cite chapter and verse every situation one including up into the pretrial statement where plaintiff said this is our theory of the case partial payment after  objection and this we argued jury instructions obviously after the rule fifty eight and one of the arguments i made was the same arguments i'm making now the same argument and in getting a response from plaintiffs counsel at that time the court asked this question didn't your complaint travel under the very specific theory that the debt was passed collectability due to the statute of limitations that therefore the debt was revived by soliciting payment that's been the theory  add on that clearly refers to the correct ninety five point zero four i mean all you've been reading has been saying over and over again to time bar debt to time bar debt that's what's been in this case ninety five point zero four deals with time barred debt ninety five zero five deals with debt that is not yet time barred so it seems to me that you're not helping yourself very much because the references over and over are we're dealing with a florida statute that talks about payments on time barred debt exactly so that is ninety five zero four which was what went to trial in the one thing that nobody seems to focus on is it is it has to be a little bit more than debt it has to be a signature ratifying that debt but it but it couldn't possibly be referring to ninety five zero five because that's not the time barred debt so i seen we you had at that the case under the other statute and that's the one they decided to proceed on and that's what their jury instructions not mine their jury instruction was partial payment all the time barred that revives the statute of limitations under florida law and we objected to that and the judge recognize that that was a problem because it wasn't an accurate statement of florida law despite the fact that that was their fears and that was my argument you're right judge it's not an accurate statement of the whole of florida law their theory is therefore fatally defect and we're entitled to a motion for judgment on the plains and i trowe we're entitled to a fifty eight judgment as a matter of law because the legal theory that they chose and proceeded on all the way through trial was this one and if you want further evidence of that but guess what under illinois law mere partial payment of a time barred debt revives the statute of limitations so at trial they were arguing they were entitled to a directed verdict at that time because of the panto's the case but that's not the law in florida so they never abandoned that they never did anything other than out so i'm going to ask you to bring your remarks to come it was fatally defective from start to finish and the only time it ever got quote unquote corrected is when the judge took it upon himself to force a jury instruction on the parties that was never requested by the plaintiff with planets theory of the case thanks very much counsel and thank you both for your efforts this court will be a