was what did he do for his professional life looks like he was a board with various businesses but mr scott had several successful businesses in the raleigh north carolina area and  in fact sold a couple of those businesses in two thousand and twelve st significant amount of money he then retained one of those businesses which is this subject of won't in two thousand and seven let me go back to the beginning when he was involved with marathon holdings what kind of business was that earth on holdings was a company that owned an aircraft and its only asset was the ownership of an aircraft and there were actually a couple of aircrafts and going back to the original moment two thousand and four here after rising in the ordinary course of business loans between any one of a combination or of the other side in the ass of a and the only underside was scott so i assume it's any dealings between scott and r b c is that correct well the problem is is that the the ass signee in that fine print which is difficult to read includes successor interest well if you if you read if you read and you're saying i'm saying that it's a dead assignment because then it it lacks consideration as to p and c bank the p m c bank had no knowledge of it they owned company's current holyoke company and was do you did you look at the loan documents in that case i have you that it might be a load agreement there's a probably a note career and what collateral was there for that got presented the assignment in two thousand and seventeen it had no knowledge of it there was no consideration to p and c bank for it it was an ineffective assignment is going back to two thousand and four damages your client of the damages well the damages are that p n c held up the proceeds for a number of months ok fifty six months and proceeded with negotiations with my client knowing that it didn't have any right to this policy but but what are the damage to the sea of what to fight it let's assume you're right what are the damages what got you've got emotional distress damages the woman just lost her husband she's trying to keep things together in an estate you've got a bank using you know it's work out people this this court's experienced and knows how banks use heavy handed tech techniques and work out situations why would this be a work out situation when there was not of the full well a default is the death of the guarantor that with the loan documents i guess now when usually when a loan document says they default is the death of the guarant oftentimes that's over courts look past it because most banks don't try to enforce that because they know if they try to a forces could be a major problem so that that's the only quote using air quote subordination that the bank put into the document and then when they corrected that they asked for a release but in both cases the bank ultimately caved that well they did  hundreds and hundreds of transactions and i've represented banks in hundreds and hundreds of transactions and i would submit to this panel that p n season tactics in this case didn't just cross an ethical line they cost legal lines and that's why this point if it has sued out a three can't complaint for what it is about but working backwards banks often may ask for more you think you've agreed on x and they ask for and they send you something that gives them just a little more than what you thought they were entitled to by way of the subordination you object and then they send you something  will agree on that but now give us a release and you say that's not part of the deal they caved on that how can there possibly be any damages during that turns out to be nine day period we ready don't want to go to st to federer nine if you take the entire course of conduct i remember i was after just to deal with those nine days well i it strikes me that if if the point if in this situation performed exactly in accordance with the agreement and then gets some consistent improper we'll call it illegal continuing conduct in which the bank is trying to extract every pound of flesh that he can and this is a course of no i get i get i get it but what is  conduct is reprehensible but let's assume you're right they crossed the line but what are the damages for those nine days while for those nine days obviously there's i've struggled with why you brought a conversion claim in the tortious interference of contract claim but you brought a conversion claim so that's what we have in front of us here it seems to me that under pennsylvania law and you agree pennsylvania law controls here correctly i believe that's correct ok then in order to have conversion person event as their property converted had to have the right to immediate possession i disagree with that interpretation and why do you laurie that's that's that's why i disagree with that let me give you a little procedural history on that point that i think will clarify the p m c bank's brief suggested that by citing a case called chrysler credit and that brief said that there had to be an immediate right to possession that's not what chrysler credit holds but the district court thought that grief hook line and sinker and cited almost verbatim in his memorandum opinion but if you read chrysler credit carefully there are a number of all oars in chrysler correct and those all wars  specifically  murder case it says that you don't have immediate right to possession of insurance proceeds what kind of insurance proceeds none of those cases deal with life insurance proceeds the those cases all deal with auto insurance dies transamerica as an insurance policy she makes a claim through her counsel for a one million dollars ok the reason in this case she didn't get a one million dollars is because this is scientific there all kinds of other reasons why an insurance company might say we're not going to respond not going to send you a one million dollars check in return mail we want to check out point a point be conditions see condition  be the insurance policy before we send anything so until all those conditions are met she doesn't have an immediate right of possession if everything's met there's a debt from that insurance company to mr scott isn't this the underlying theory that in pennsylvania you don't have a action in conversion you have a contract action against the insurance company i would respectfully suggest to the court that fixation on immediate right possession is not the law conversion pennsylvania there are oars in the law of conversion and pennsylvania hinted isn't just immediate right and if you take a careful look at the cases that involve insurance you'll see that they are not life insurance this is not a lawsuit against trans america understand the big failing to pay i did a this is this is a lawsuit against a rd party for getting in the way of that tantamount to that we also you know we also have a fraud claim you have to have a you have to have an underlying contract claim to recover under that end and we've played down all of the elements of which every nine days of damages well  all of the elements of each of the causes of action are properly planned in the district court took away from the point of the right to prove those things this case is not a difficult case on procedure rule twelve the sense that is the moment that that that assignment gets said tach to a response in this case the plaintiff gets a chance to rebut it that was taken away from the point if you're that's a good the question i guess i have is how did the assignment of life insurance that was entered into in two thousand and three become known assignment of life insurance policy i don't know that that is true that you cannot understand one hundred from a time point of view if you st found out about it when transamerica noted that there was an assignment of life insurance in august or sometime there after mr scruggs death then it would appear that they did no one knew about this other than trans america in the few months before when the load for half a one million dollars was raised correct well i don't believe that that is the case you don't know what is the case that p s he was not aware of until it was informed and that you just answered my question before when did it come to the fore that there was an assignment of life insurance policy and you said it would happen shortly after mr scott stepped right that would that be and you had to know and you're on it well anyone had the knowledge because it wasn't noted there was if i'm making a loan to you in march of two thousand and seventeen and i know about the assignment of life insurance policy i would say ok we're making you here's an over five hundred thousand dollars and the collateral and seventeen did not include to your knowledge the assignment of life insurance well i didn't think it's a yes or no i don't now but that was not alleged in the complaint but is it that what they what's alleged in the complaint now will go back to paragraph seven of the complaint says that when the loan was paid off in two thousand and four there should have been an association  the life insurance assignment and your response to that is well well well hang on there's a nd document that accompanies the assignment of life insurance called assignment of life insurance policy as collateral and that accompanies the fo in two thousand and three and that simon a life insurance policy as collateral says this is signed it is made in the policy is to be held as collateral security for any and all liabilities carried obvious got junior and marathon holdings to the absentee which was r b c censure so he's a north carolina person and this is a north carolina bank r b c censure both those now existing and those that may he after arise in the ordinary course of business between anyone or any combination of the undersigned in the ass and the so i'm not quite sure what that means but i guess it means that in the ordinary course of business between scott and r b yeah ok and so it does your point is it doesn't the typical case would be yeah you got to give a notice to trans america in two thousand and four that disclose when paid off but not here i don't know the answer to that question is the ordinary course future dealings between r b c and scott well may be but it turns out there are no let's assume mr scott lived to be one hundred and seven as that of dying in two thousand and seventeen are you saying that this assignment of life insurance exists in perpetuity until this man  we don't know do we do you know for sure it with this document met in two thousand and three when they say that this assignment of life insurance policy will exist hereafter for in the ordinary course of business for any dealings in effect between scott and r b c what is in the ordinary course of business me well i don't think we're at the stage where we're trying to interpret the meaning of the contract and i would take a step back and just saying that even if you don't consider the assignment there haven't been any cause of action quite here where he's pleading a cause of action where they had a right to something that the bank is p and c is claiming that it had its holding it up and therefore there's a conversion right or is just fisher says if you meant a complaint maybe there's an interference with a contractual right wh might the point where i'm heading is if i can't figure out what the ordinary course of business means with regard to a now defunct entity called r b c section sure and mr scott who's now dead doesn't that mean somehow we've got to interpret that or if you're back in the district court you've got to try to find out through some discovery what if there was anything writings or anything like that as to how this right here scott purchased a policy as required by our city's r b c center a bank in connection with a loan transaction was a paid off and satisfied it all for effectively negating the assignment of the policy so they're saying it was negated in four you're saying no it goes past if we're just look at this language the question is how long does it go past over for and don't you need to scope to find out what that is well i would say that that is completely allegation that's not entitled to the presumption of truth because it's north carolina has cases that say that when you pay off the debt the collateral must be given up in the in the general case then again you come back and say wait a minute i've got an agreement that says it goes beyond the general case but how far beyond before it becomes something that perhaps becomes lack of a better word unconscionable and so there's a lot of there's a lot of here on this case and it seems very difficult to try to say that this case can be resolved completely on a motion to dismiss rather than maybe  judgment who knows but marathons not involved anymore the loan from three it is a new company this man was obviously an entrepreneur and seemingly i guess successful and it's of small loan and it looks like my guess is that the st inkling that p and c had that there was an assignment of life insurance policy was an august of two thousand and seventeen or shortly thereafter and you pay off the loan or the liability the collateral just disappears you have to get rid of it you have to let it go and years and again you're saying i have a good argument to that look at that look at the agreement that point that there was a sign of life insurance policy and agreeing with mr scott that that was collateral to support his guarantee you've got a problem and you're telling me it looks like absolute discovery that the bank didn't know about this deal for five months later when mr scott died well i'm not saying that you are not and i think that is contrary to the facts even as i had what are you seeing his  mr scott's life they've got an assignment somebody makes a claim all they say is hey there is a sign in here back in two thousand and three and that bank by the way doesn't exist anymore it's b n c straight up with them whether or not that assignment is trans america your counsel to them is don't get involved in this stay out of it well i think that this line of argument is inserting an expiration date time and that is clearly not there no in the ordinary course of business between scott and r b c in effect so far you're telling me we have to do an interpretation of that no i don't you know what perhaps until mr scott guys when ever that is that's an interpretation just happens to be under my assumption in the papers you correct ye so i'm saying that there's a possibility that with discovery you might interpret this the other  north carolina law applies to the assignment of life insurance as collateral and almost explain i think everybody here can pretty much agree that's the case then you the question is how would north carolina interpret this particular assignment this language that says that this is signed it continues for all liabilities that exist between scott and r b c now to folks by the way in the ordinary course of business and i'm telling you i simply don't know what that means necessarily going on i still don't think that but there's got to be an end date i would think it's not it's not death that one hundred and seven have property insurance some type of event happens like a hurricane i go apply for the proper insurance they go no we have theirs we don't pay it out under for this type of event that's in nature that example of that well your honor in the end this as far as the conversion claim is is concerned as i did make a point appellant received the proceeds in fall two months before between january thirty one and by leo february knowing the negotiation i'm not i don't think we have to get into that i've told mr perkins i don't think there's much of a a claim their bank may have quote crossed the line close quote but they mediately came back across and they settled up so that's not the issue for me the issue for me is two thousand and seventeen if you make a low i thought if you would come to me and you said and seventeen we knew about the assignment of life insurance policy scott knew about it as well we reminded him and it was part of the loan package case closed the thief mr scott loses but you're telling this is kind of putting us in a catch twenty two you will be had as well you both have actually blown dogs i mean if they if they age you you would put them out if they so neither side really gave us the lone dog for much of seventeen and that's probably