revolve around two contracts to which the apple leave mr willis's apart each of which contains an agreement to arbitrate the st contract the contract on which mr willis based the truth in lending action which he filed against tower which is the underlying complain in dispute here this st contract is a loan installment agreement between mr willis as the borrower and tower as the lender the nd contract isn't is an insurance policy including the indorsement to the insurance policy actually there are two policies here but the contract here the insurance policy indorsement is between mr willis as the insured and the respective insurance company understandably tower filed its motion to compel arbitration in response to the truth in lending act complying challenging disclosures under the loan installment agreement under the arbitration provisions within that agreement the bankruptcy court however erred when the court found there was no meeting of the minds of the parties to that loan installment agreement big conflicts between the two arbitration adrian's do you disagree with that there's something in that neighborhood i would say there's more like six but he found seven he included differences between the two agreements he did related to of the notice period maybe related to venue the mutual agreement with single arbitrator cost the us he did find differences in conflicts between the agreements but i don't threshold position is that he never should have considered the insurance policy indorsement the question of a meeting of the minds in mutual in t n of course requires  basic contract principles when you look at the four corners of the instrument a debt afic ation of the parties to the contract in the contract in the issue we submit it was the loan installment agreement tower is not a port to the insurance policy it's nineteen the insurance secret it is named as an affiliated company in the insurance policy agreement it is not named as a indorsement which provides that the arbitration agreement also applies to disputes and claims between employee agents and affiliated corporations which would include towers but that doesn't make them a party to the agreement what's the relationship between the insurance companies and tower they are affiliated companies fairly and in what while a parent subsidiary tower would be the parent within a corporate structure there it's a complicated corporate structure your honor but you do have the insurance company's tower loan mississippi else they would be the parent in their other parents  was what was given the two agreements by tower yes oh but the the agent the person employed by towers also an agent for the company  this respect john but the point again becomes when you look at the insurance policy the endorsement the notice about the policy it set forth here makes it clear this affects your rights  party the insurance company the insurer has entered into this agreement now with there's a dispute that arises under the insurance policy in which the plane is insured elects to invoke or involve other entities with respect to be related matters there may be that is that situation may arise but this is a truth in lending at this just speak plainly read the court's opinion i believe it's on page seventeen the court adin a file's the insurance companies as the parties in them says they include the affiliated companies dead is not an appropriate way to adin a file the parties to the agreement whether a non contracting party with respect to have obligations or right under that agreement there is not relevant to it is of no moment with respect to the meaning of the mind of the parties to the circumstances a non signatory may or may not have rights that does not bear on the determination of the meeting of the minds between the parties that's a threshold determinative dish but what you're also confronted with are two separate contracts admittedly standing alone valid existing weatherproofing case to talk about construing the agreements together but those who are global integrated transactions where the court recognized that there was an important contract containing arbitration provision which was a condition preceding to all the other agreements indeed it was part of the transaction documents necessary to consummate the transaction it was integral and it was part of the consideration that's not present here we cited the messy case to the court where there was an admission agreement to a nursing home and then there also  was an arbitration agreement and the painter for the individual patient attempted to take the two and compare them together in the court said don't do that here because this the loan in stone an agreement itself says you don't even have to package it like that sure you do have to obtain property insurance but you can get them from any credible insurance company that you will let there is no suggestion whatsoever of any condition preceding relationship at all at some point you argue ambiguity you know we do in the current in the briefs and that's in the context of if you reach the issues of construe in these agreements what do you do if you were to can code which we don't think the court should if you construe them together apply a basic principles of contractual interpretation indeed finding a contract to be sufficiently definite is favored in the law and these differences that were identified by the or between the st the lone installment agreement arbitration agreement and the endorsement to the insurance policy are not material they're not mature out how would you have either the district court or this court harmonize contractual agreements that you've acknowledged are in conflict in several respects well what we would submit  formation and if there's going to be further interpretation in there if you use both agreements that should be referred to the arbitrator under the delegation calls and what  harmonizing those that's really hardly a conflict at all the selection of the arbitrator by mutual agreement of the parties if the parties don't agree one agreement says you section five of the  ambiguity in our brief but the threshold point again is basic contract principles require the determination of the meeting of the minds who's m  insurance company and whites of all others that may or may not a rise did not inform the mutual interior of the contracting parties whether other parties may have rights is that determined to the issue that's where the court to begin with the lower court did answer the question on contract formation principles as opposed to the use of contract interpretation provisions when you see the courts use interpretation provisions to determine the applicability of one contract to another contract as a pawn of an parties agreed to arbitrate that dispute in this particular case i don't believe that the parties agreed to arbitrate what they clearly are globally both agreements to me at least reflect an intent to arbitrate every  y now the rest of it to me seems to are details that are not material you cannot get past the clear intent arbitrated seems to me but that's actually where i believe the facts of this case become really relevant when mr willis walked into tower loan and received this arbitration agreement he also received a packet of all these other documents he signed included in it was this indorsement the nd arbitration agreement they were all part and parcel of the same contract they all came from tolerable my rebuttal to that basic premise that they agreed to arbitrate is it's very challenging to agree to arbitrate when the parties have fundamentally or one party the party providing all the documents to our low can't fundamentally decide who pays the costs of it  differs between all the internally in the st one and differs from the nd arbitration agreement and so if one party can't decide if it pays all none or some of the amounts to pay for arbitration and that's one of only seven disputes  think that constraint strictly against the person who drafted the agreement that would be the tower in two days and your client could pick the one he chooses is most viable that's that's an interesting point because i don't know whether or not my client could in fact pick which one to operate under because it would be unclear to him which one is in fact binding they both appear binding and so to pick one and excuse the other i actually referred to the arbitrator likely learn agreement says richard arbiter military is a matter for the arbitrator let the arbitrator decide because in mississippi i'm sorry i apologize if i if i interrupted you but in mississippi in order for there to be a sufficiently definite contract it has to be consistent it has to be overarching there has to be a meeting of the minds in this is the definition in my opinion of a contract that has all these moving parts but it has so many inconsistency is that it strikes at the heart of an agreement there's no dispute that the parties agreed to a loan there were transfers of funds whether or not those transfers in fact actually happened is the entire premise of the lawsuit but whether arbitration indeed was presupposed is i think more challenging for example if the court were to look at the installment agreement it's on record on appeal to ninety four at the very bottom of it it states arbitration agreement by signing below in obtaining this loan borrower griese to the arbitration agreement on the additional pages plural of this agreement you should read it carefully before you sign below important provisions including our privacy policy are contained on additional pages and incorporated here is mr wilson directly below the now the additional pages council for tower loan explained below that that express included not only are the arbitration agreement on the back half of that page which is record on appeal to ninety five dollars but it also included the endorsement to require binding arbitration contained on record on appeal two hundred and ninety seven thousand two hundred and ninety eight it was all incorporated in one thing so mr willis who is by all accounts a typical consumer we have affidavits in the record on appeal that he has no legal training and important and i think it's very important to identify that there if there's an agreement to arbitrate the consumer is bound to it i think that's abundantly clear in the case law and i'm not disputing that but i think if a consumer is looking at documents that are so in big us and so rooted in consistency it's challenging for a consumer to say oh i actually agree to this or i would know how to proceed with this when a federal judge can look at this and say i don't know how this is actually going to play out how do i enforce one and not force the other that's inconsistency the other issues that i wanted to discuss if i may briefly is there were some of the arguments that have been raised today that were in fact waived below st and foremost is the tower alone not being a party to the  nd agreement that was waived tower lho did not argue that actually below i happened to be there but below the tower alone in fact argued that they were a party to it but it just didn't include this kind of lawsuit it was proceed under furthermore the other arguments the ambiguity analysis that was identified the tower alone says that the bankruptcy court did not properly go through that analysis that was also not in fact argued even to the district court in the us it is waived here on appeal but even if not it's very hard in my opinion to harmonize competing provisions for example saying tower alone pays all of the costs or tower pays none of the costs it's challenging under contract interpretation principles which i will agree to very challenging to harmonize those things they just flat conflict there's no way to find a meeting of the minds as to that point furthermore the dispute the severability argument was also not argued below so those main arguments were waived important facts tower alone i  would just identify a few different things below counsel for tower alone argued on record on appeal three hundred and nineteen dollars it's important to point out that in tower loans motion is not invoked this the nd arbitration agreement clo it's hard to invoke an arbitration agreement if you're not a party to it in my opinion and so that's fascinating that tower alone says we're not a party now on appeal but below they were completely different furthermore the representations were not everything i think that if you look at the nd arbitration agreement it identifies it says in paragraph one this is on two hundred and ninety seven this arbitration agreement applies to all claims and disputes between bar and the company this includes but is not limited to all claims and disputes arising out of in connection with or relating to bullet point number one the loan borrower is obtaining from the lender today or any other loans or retail installment contracts with the lender it goes down any insurance purchased from the company in connection with the loan or any previous loan or retail installment sales or contract the point of this is to say that this nd arbitration agreement only comes from the insurance cont is not a fair reading of it if it obviously intends to include also the scope of all agreements the mental gymnastics i highlighted this my brief to say we're not a party or we are a party but we're only we're not included as  almost any consumer of attrition agreement would be a contractor a haitian would it may very well be but i think this is where the th circuit in the re get decision and this case have key important factual distinctions in raigad for example it was two parties of relevance to the arbitration dispute each had drafted three different arbitration provisions they disputed informative weights and i think it's important that even though one party drafted three of the arbitration agreements the th circuit rig upset they didn't actually have a meeting of the minds because they differed so much on terms even though it's only for disputes here we have two agreements at issue both produced by the same party yet they are so internally contradictory we can't determine basic basic tenants in mississippi and i've got the case in my brief i know this your honor but in mississippi price is in fact a material point of any contract and so i've got that in brief and i believe that that's a really critical point here price could not be determined from the face of the documents and to say well mr willis can choose to elect whether which arbitration agreement he goes under my rebuttal to that might be why couldn't mr willis in fact choose to just not arbitrate it because it's so contradictory between them also the number of disputes it's been identified seven of them i think riddled is the key phrase from mississippi supreme court that's from duke versus watley and giggly over society that key phrase is where it's riddled with inconsistency it struggles a court struggles to say that there was actually an agreement formed that's contract formation of kin those sites are all in my brief tower alone provided a one way street of information and that street differed it's challenging to say this would be a case to create a split  authority from the th circuit where multiple arbitration agreements with competing terms in fact can be enforced where there was some overarching meeting of the minds this case importantly is distinct from a case where there's a simple one line the parties agreed to arbitrate and all the terms can be filled in with statutory fillers or others simplicity allows for an easier meeting of the minds here there was no meeting of the minds it was so complex that even bear with me one thing about the dissent in re gaby finally it was brought up by opposing counsel and it was discussed at length in the bankruptcy courts opinion i think it's important because just as gorsuch is now on the u supreme court in it and i will quote he said the following because the plaintive asked for and received assent to three arbitration clauses he drafted and signed three others all in a commercial setting and well represented by counsel i just don't see how he can seriously claim that he never intended to arbitrate those are key factual distinctions mr willis no legal training no attorney and yet in fact he didn't have counsel there and it was not in a commercial setting it wasn't necessarily in that kind of typical guys this was a consumer going in to get a standard loan and in fact it was a renault one if memory serves and so one thing arbitrating was at least in theory designed to do was to make it very cost effective for people to resolve their disputes yeah why is it that there's so much resistance or the argument from the consumer shouldn't have to arbitrate when that might be a lot cheaper for the consumer in faster in the long run wiser just wiser you characterizes it a contract that he can i don't understand that argument in the clauses wonderful your honor all try to answer that with with two ways to distinct so parts if i may the st is i think there's a general a version in the consumer world and it's difficult standing at this  podium to represent all consumers by any means but i will say that there's an aversion to going to an arbitrator that gets paid on a per arbitration basis and so if i go to an arbitrator in that arbitrator has one hundred cases with our lo and they rule in my favor in tower alone has the option to select that arbitrator down the road what's better from a business standpoint clearly it's better for them to have more cases that come through from tower loan where they rule in their favor because that's more money in their pocket is an arbitrator that's just one of the other issues that i see with arbitration here is that arbitration can provide i think there's it can be efficient but if you look at the installment loan agreement and if you don't mind again this is record on appeal to ninety four it says this is under remedies it's down in the fine print when borrower defaults lender can take one or more of the following actions cancel the insurance in accordance with the arbitration agreement bring suit for arbitrate the delinquent payments accelerate accept or it says that lenders attorneys fees lenders legal expenses whether or not there's a lawsuit so what happens is i go to arbitration even after i file bankruptcy an arbitrator who is totally unaware of the fact that i've gotten a bankruptcy discharge in fact says well this is i can award attorney's fees not only to our loan because i have a one hundred with you in my going to let you in this particular matter but i'm also going to reward your attorney's fees bankruptcy discharged or not and i think that is a concern it's a genuine concern especially in the bankruptcy context and i hope that answers your question that i know the decision to result that you want and i don't know what result we're going to reach but suppose we say that if nothing else there was definitely an agreement to arbitrate regardless of what the terms were saying that we were to decide do you agree that it with didn't go to the arbitrator to reconcile our harmonize or figure out what terms should be imposed as between the two contracts or is that a job for the courts i believe both the st and  the nd arbitration agreements in this particular matter specifically state that the arbitrator will decide those kinds of questions that seems to me to be the correct result it's one of the few consistent provisions  i think that stating that parties agreed to arbitrate generally when in fact so many of these different terms differ is very challenging to ask a federal court for example below the bankruptcy court or the district court to enforce an arbitration provision when tower alone has said they're only proceeding under the st they're not proceeding under the nd arbitration that puts whatever agreement that the parties ha it's because they differ on notice periods who decides the arbitrator venue toss all these different things differ and so to say mr willis you may bring your claim but you need to go to an arbitrator below here's the way to do it i think it puts courts below frankly the tough position to say all right go arbitrate where to arbitrate who knows but good luck i don't even have jurisdiction to hear after that happens it's challenging in cases like this and so your honor that's where i think the the problem would come out of a case like this another point if i may and i think i'll keep it brief in the i'll be done is the delegation cause was argued extensively in the briefs specifically that the st arbitration agreement contained a delegation clause that in all claims has to be arbitrated under that arbitration provision the nd in this is important the nd arbitration agreement contains almost verbatim the exact same delegation clause so even though that argument was waived  below your honor your honors i would propose that in fact on the merits that argument fails lastly attempting to harmonize provisions that are fundamentally competing is very very challenging and i think asking i think judge on what had it correct when he reviewed the regard versus howard case it's the only case as far as i'm aware from the circuit level that identifies this very issue and even with just discourse which is dissent i believe the reasoning is that very case that he identifies if i may just discourse which says that all this is not to say that i believe conflicting contract provisions might never render an arbitration agreement void for lack of meeting of the minds in some cases for example the party's contract documents will conflict on the fundamental question whether they wish to arbitrate or not i don't know what other kind of case where we have so many competing provisions that are riddled with inconsistency is then this where it just doesn't make sense that they actually agreed to arbitrate these were not represented parties at least mr willis was not represented he's a consumer and so i would ask this court to affirm what happened below and i would ask that the court take into consideration that while there can be a simple meeting of the minds there can be a simple one line we agreed to arbitrate in tower alone provided both these documents tower alone could have elected to do that but instead tower alone had brought in consistent and vague clauses so much so that it was riddled and under mississippi law that kind of contract not to be in fact enforceable because there is no meeting of the minds and so with thank you your honor of several points quickly one there shouldn't be any confusion or on certainty around the big very basic proposition the tower alone is not an insurance we are not sure and suggestions that tower incher tower alone roti insurance policy are not evidence by the record in any way whatsoever this notice about the policy of insurance is one plainly directed only behalf of the insurance company to the insurer talking up down you and the insurance company that's how now this arises as it relates to the insurance policy in the endorsement itself there were references made by counsel to the in the loan installment agreement concerning additional pages if i may i'd like to address that briefly if you look at the record on page two hundred and ninety four in the loan installment agreement the document provide arbitration agreement by signing bolo and obtaining this loan but all were agrees to the addition agrees to the arbitration agreement own the additional pages arbitration agreement in the singular net since you should read it carefully in references are made to the statement of council in lower court there shouldn't be any confusion about counsel's position only his feet at the hearing which i'll explain momentarily concerning he took the position there were two different agreements in the only one that applied was the loan installment agreement questions as to waive st and foremost he says tower loan waive the issue as to who were parties the bankruptcy court only in its opinion record page two fifty two dollars states in the lower court now because tower alone asserted that the arbitration agreements govern separate issues and or parts so there's that recognition by the court they are in then we would emphasize how this step yes all right then how are the parties going to choose the arbitrators they'll do it pursuant to the agreement by mutual agreement if the suggestion of don't have don't it don't they have to harmonize something in your view both agreements provide for a single arbitrator to be mutually agreed to by the parties if they don't agree one seeing as you go on to the f a a the other says you go to the national retracing the room which does not exist so there is no conflict the court could do it or this court could direct that the party submit three names to the have chosen but i don't really know how you get over the hurdle of choosing them where there's a conflict there respectfully the threshold provide the means in both arbitration agreements provide for a single arbitrator to be mutually agreed to by the parties nd if there is no agreement and you give us that yes all right thank you mr stevenson your case is under submission now here pay on a versus environmental safety and health consulting