the regulation it's limited to tax related cases and claims set right of higher case law has has has not really looked at the between the parties because the plaintiffs explicitly disclaimed such a duty by contract yes that's correct and what's your best response to that i argue and i make this effectively not protect their interests what is the description of your view of the contract right that you claim the contract the contract rights derive from what to consider but but i have to i have to point out other other issuers have entered into back into back bad contracts and entered into a perpetual order or four hundred year contracts so this is now i'm just asking you what is the basis of their claim of a contractual right to get to go on doing that i'm not even i'm not implying anything by my question i'm just asking you explain to me the basis their claimed basis of a contract right and titling them to continue to renew the c d s as long as they wish to and i assume that that would mean that their children and their children's children and so forth could continue to do it as well that explain to me the basis for  importantly the evergreen five percent interest rate and what makes it evergreen what makes it evergreen is is that when they when they signed up for to nine hundred and eighty three they got they they got the in in st national law st national selector that says i will personally see that your three years cd receives a minimum rate of twelve percent for all future renewals of the three year term and is that what you rely on yes all right and so with that why is that not a personal promise to the the person of the mother to whom it was  addressed as opposed to one that that would i mean are you arguing that this that this promise that ran with the security that it was a became a term of the security so that so that anyone to whom it might be sold for long as it is legally acquired it can be sold by the person who who originally had it to another person and then to another and then to another or you are are you arguing at that promise made these c they trust agreement the trustee because if you cheri and there is a breach of the free duty obligation created by the truss structure but independent of it of the actual cla i believe that can exist in in this case and has to be have to be fully examined by this difficult but most importantly it's a question of fact as as the as the argument i make in my papers it's not something for the district court to decide on the pleadings when it when it it's a factual issue that should be subject to both book discovery depositions and exists and whether it's been whether with it's been breached whether the duty exists comes comes down to the factual question of the nature of the relationship between the parties and to my surprise to my surprise i did not i must admit when researching the issue the case last supports the argument that that's a factor determination at and not a legal one and for that reason it should not have tripped not have been decided and courts have said we don't effect we don't like this but it's but why didn't you have an obligation to bring the suit within two years after that so that the present suit is untimely i mean the way it seems to be the way you interpret it you could bring the same suit in in the year four thousand and fifty six dollars because here you're saying that at least if somebody keeps these c d s renews these c d s until then at any time if you can do it now why can't they do had a board of lawsuit that we had banded for it for personal reasons and then and then filed this case in eighteen shortly after again another great now if i would argue that the that the twelve dollars fifteen cents creatures are brought in are brought within the statute under the continuing wrong doctrine because each was a separate wrongful action and an explicit eighteen and twenty one year olds should at least get injunctive relief i'm going i'm going forward they are certainly within any statute going to take the contract is continuing again as as a contract attorney i've drafted a large number of automatically renewing contracts which which would fall under the same category as long as the contract is renewed and it has not been terminated by either party then  including these terms that we obviously dispute i would argue of course my client has has not waived it having protested loudly along the wet so you you have of the motion to amend and counsel does not defend the granting of judgment on the pleadings on the original complaint so as i understand the argument today it's all directed to whether judge buchwald erroneous tonight the motion to amend to allow them to proceed on the st amended complaint the district court direct correctly denied the motion to amend on grounds of utility and that one didn't but it didn't they didn't they refer to the didn't they refer to the promise that says i hereby i personally promise you that you will get to twelve percent on each renewal they did your honor that letter which is in next to the proposed amended white actually undermines their argument that this promise applies to that it specifically then i do not really arguing that it applies to them they're arguing that it applies to the security or at least it's an alternative argument is that it is is that the bank promised that it would be a security renewal at twelve percent interest insured bank account it's a savings account that differs from an ordinary savings account only and that it's a time deposit that's what their mother had for chicago according to that letter and with respect to whether applies beyond her savings account that letter basically says to their mother mrs chapman you are mistaken this bank account was never intended to renew at twelve percent after the st renewal but we understand that you thought differently and therefore we are going to allow your cd to renew at twelve per set now the chaz mans did not inherit a security they are her beneficiaries on that account and they inherited money this is so under the election of this successes they're going to be sure they are beneficiaries they are not successors and the election of payment forms which they put in as an attachment to their proposed amended complaint says how do you will left to take your just abuse and their agenda says transfer fifty percent to each of us right to the money and they could have taken it and bought a house take it and put it in a mutual fund and they also as her beneficiaries had put it into a tax advantaged account which is an inherited paraphrasing what they attach and so we have to look to the addendum to see if that is it can be construed as a contractual term and what the chazz minds are doing is they're using the agenda to basically say we get what's in that nine hundred and ninety one dollars letter but the letter as i said it is specific to their mother's bank account and there is only one sentence in me agenda that they required chase to pay them twelve percent interest every three years and their children and their children's children and so on and that sentence is this these contracts bear  coupon or twelve percent or so which we expect to be transferred to us fifty percent and the district court correctly found that sends to the big to be imposing any contractual  a path that st of all this is not a coupon instrument whatever they may think this is not a bond it's an f t auction which she had was an f b i see insured bank account and that's what they have their to the extent says put the money and to acquire a c d s for us it is a part of the agreement but one to the extent that they purport to be adding a term to pay twelve percent for their lives and beyond that term is not in the agenda it doesn't say that chase will pay twelve percent upon every renewal of  questioning that they submitted that well you know works that i should say actually run of that we are accepting as true that this was attached at this phase of the procedure and were not discovery but we accept as true that they submitted this as an addend assuming the truth of the fact that this is an agenda based on their pleading that sentence could not require anybody to pay twelve percent interest forever it just doesn't say that and to it doesn't attach any agreement of their mother to say this is what we need and it doesn't attach the one thousand nine hundred and ninety one letter from st chicago and if it did attach that letter it would clear they didn't get twelve percent it's not a coupon it's not a bond it was a bank account their mother was mistaken and this was something that was given to her it is not clause a ball it is not a plausible claim that this and what this letter says if you're mistaken but we're going to give it to you it doesn't say we're going to give it to anybody there's nothing in this letter that their mother thought it would extend beyond her life this is  so this is an attachment to the proposed amended complaint can you just unpack for me sort of where we are you know procedurally in other words as you point out the district court well six if the agenda ms exhibit is an attachment to the proposed amended complaint to the extent the court is reviewing her decision and that the proposed amended that letter so this is the contract that is what is planned and our argument is there is nothing in these documents that requires chase to pay twelve percent interest there is no of new york law and the relation ship between breach of contract and breach of do sherry duty is wrong well they did not actually clea anything close remotely close to this so your honor i apologize not to have that at my fingertips but my recollection is that there is a lower court case that was affirmed although not precisely is explicitly disclaimed in the custodial agreement and they acknowledge in the complaint and their reefing that they signed off on that and they are bound and they have cited no authority and we have up in new york is you are bound by what you signed and if you don't understand it it is your responsibility to get an explanation and there are cases that say if you're blind somebody has to read it to you if you don't understand it you have to have it explained to you you can't come back later and say oh gee i didn't know and so there is no factual development on that and there actually is nothing alleged saying that they didn't understand it the argument that it wasn't disclosed that disclosures were not made the account regulations explicitly disclosed that it will a cd will renew at the then current rate and the custodial agreement specifically  before you go on which is that i just think i understood you to say that new york law provides that a claim of seduce sherry duty cannot validly rest on the same facts as a claim of breach of says i'm going off on a long trip and i'm going to in exchange for my payment to you of a certain see is i'm going to ask you to take custody of my money and and and  invest it prudently and and watch over it both for my benefit and for the benefit of my children and so forth and to be a careful custody end of it and prudent and goes often supposing he then comes back and finds that the that the person who was intrusted with the funds did some bad things and bring this a two part claims a unusual case that it's not a contract so yes if a contract says we are a fiduciary or you are imposing trust in us we will use our discretion to invest your money if that is breached and there could be a breach just that you share a duty say that what you doing does here is simply reiterate a breach of contract and slap but that's not that's not that's not saying that if a do sherry claim cannot rest on the same facts as a contract claim it's just you're just here is that in two thousand and twelve chase said this does not have a twelve percent evergreen term this under our agreement run news at the account so it doesn't matter what label you know has been put on it and again if that was a breach it happened when chase said we're not giving you that rate anymore  i think your honor it would be basically the same thing because it would be a decision of the state do you share a not to apply this higher rate and it's basically one act saying you fall within this contract it's not something new every time these are additional damages that flow from the alleged you sherry saying you're in contract to be not in contract  few thank you very much so you  security has its own implications of questions which i don't want to go don't want to or cannot go into but as it is a contract it's a question of a contract interpretation  and the argument that it's it's just a bank account it's a bank account with a contract the contract that i think that i seek to enforce the fact that a data bank account is actually relatively irrelevant addressing the