this was done pursuant to a contract which is fairly standard in the industry which among other things obligated platinum to repurchase the first cure if they could and if not to repurchase any loans deemed by c m i in its absolute discretion to be defective or improperly written among the defects that would authorize c m i to reject such a loan and demand cur seven hundred forty nine loans this case involves seven of them all of them rejected by fannie or freddie and all deemed by fannie freddie and c m i to have violated underwriting requirements of c m i and also it they contain the misrepresentations by the bar are or of such things as that is income his existing of litigation those these correspondents repeatedly refused to acknowledge their responsibility under this kind of contract c m i would send three notice letters to the  platinum upon finding out about the defect the first is called citing notification letter which said that fannie mae or freddie mac had rejected one of these loans for a specified reasons and here are the reasons that notice gave platinum thirty days to come in to contest the rejection and or propose  satisfactory resolution for failing which it would be received required to repurchase the loan council are the triggers under section eleven just to get to that the agreement itself the triggers under section borrower violated the underwriting requirements of c m i so this thing about triggers and in splicing and dicing those two provisions to me meaningless because the underwriter and as in this case they underwrote the loan so that applies in addition to section eleven and as far as when there's a misrepresentation and a rejection by fannie or freddie that automatically triggers both section eleven and the done them and the notices in and in our view complied with both of those sections but you could have a situation i think under section eleven where you could have a trigger that would be curable you could because the addendum is almost always could be not curable it was very or violating the underwriting requirements but if what if although i suppose you could even say even that could be curative if the underwriting requirements were to that you had to have five pay stubs and they only had four saw they provide to go get the fifth one it's totally consistent with the other four that's a curable violation that's possible yes but of course that's not what we're dealing with here  these violations were not in curable they tried they took the position that by coming in and explaining in great detail in some cases why they didn't think these loans were defective that they had assured them that their their own pleading in the case says that because they were not defective they therefore had established a cure and that's an appendix eight fifty eight eight seventy four but fannie and freddie said no that they have thirty days to respond yes isn't that part of the issue it doesn't say thirty days in there no it does say thirty days yes all three of the letters went out had a thirty day requirement why correspondent leave such i underwriting criteria was not violated doesn't say anything about curing or correcting if this thirty days was meant to apply to section eleven  of correcting or curing the error that platinum violated only so that sort of leaving an ambiguous i think because by definition if there is an underwriting violation it can't be cured i mean the you have violated the principles in making original loan for five years ago perhaps platinum is a position to cure that the only cure could come from the daughter who is no longer gone i think that's why the a done them doesn't talk about cure but it does come in and tell us if we're wrong which in effect is the only cure that's possible so once that fails it's time to fess up and buy the loan back well that brings up the question why use the phrase correct or cure and section eleven th well that's that's basically what is what's going on i mean here's here's this lone fix it you can use that language and say correct or cure it you say come in and propose a satisfactory resolution is what's it's all that basically is synonymous stuff and that the judge in this case got off track i think by construing this this notice to sure as a condition there she didn't hold that condition consumed she just assumed it and then said it's got to be strictly complied with well the law is pretty clear in missouri and elsewhere that first of all missouri does not favor conditions preceding secondly there is no conditional language of any type in here and generally the law is that in this kind of a case substantial compliance is  adequate and what you have here is substantial compliance and then some and said here's the problem fix it in other words cure it and when you can't then what's the point in giving a second notice to cure and there's no no showing anywhere in the briefs or anywhere else what platinum thinks it could have done to cure if it had gotten this notice that it claims should have been more detailed and specific  we're going to have to buy them back so they search around for some excuse not to and here we are years later and many dollars later and they still are slicing and dicing these visions trying to figure out some way to avoid what is an notice provisions will not be strictly come construed when there is no prejudice to the party whose posts receive the notice and there's no damage and that's the case here if they'd gotten another notice to cure what would they have done that have the same situation we do now they would have come up with some other reason not to pay i guess but strict compliance is not is not required this is not a condition pre new york case we cite in our required brief of national year says it pretty well that notice provisions of this type should not be construed to antiquity i swear and i think that's that's correct we should not be construed so as to strip the contract of it's meaning question is did did the parties understand what was going on did they contradict contractual terms get recognized and implemented was was  platinum prejudiced by a slight variation in the language of the contract versus the language of the letter the answer to that is clearly no and so this is the privately much ado about the council i just want to ask you this which is i think i understand completely city mortgages view but i think from the other point of view if you read those letters they talk about the rate now evidence that you know you can submit the rabbit written evidence within thirty days which is part of the  assume that they couldn't correct or cure but why why did not mention that in the letters as well that you could correct or cure it makes it seem like there are hiding that fact while they were basically saying only way you can correct or cure here is to show us that we're wrong or to propose a satisfactory explanation i mean those to me that's synonymous and there is clearly there's no question about the fact that they knew what they had to do they tried to do it they took the position that we cured by thank you your honor jonathan jenkins for platinum home mortgage corporation may have pleased the court this is basic contract action about c m i too big to fail financial institution that thought it had so much contractual discretion over its correspondent lenders that parent lee believed it no longer had to follow a few basic ground agree on a number of first principles such as the rules of contractual interpretation that apply to section eleven as amended by the d you would end up first we should interpret contractual intent entirely from the contract terms that's the holding of citi mortgage versus chicago bank or the last circuit pronouncement on i's repurchase demands which states when a contract is unambiguous intent is discerned soley from the contracts language likewise reply brief at page two and three cites state x ro riverside pipeline which says a contract must be construed as a whole so is not to render any terms meaningless a construction that gives a reasonable meaning to each phrase and cla in harmonizes all provisions is perverted over a construction that least some of the provisions of that function are sense well the quotation is to done industries which is platinums case for that exact same proposition now the problem comes in the application platinum contends that its interpretation and judge hamilton's order be low used to some derivative maxon to harmonize amended section eleven and give all provisions meaning and eliminate extraneous terminology so what's the deficiency in the notice the deficiency in all of the notices is the failure to prescribe the time prescribed by c m i to correct or your loan no we also went one step further below and said that the notices were misleading under the gray v brick now because one they amended or they purported to recite the pertin t portions of section eleven but amid any reference to the cure provision and never mentioned correction or cure  it's under spirited that none of the letters you were ever on notice that they were non conforming there was non conforming performance in order for them to perform under their  wouldn't it be not unreasonable to assume that your obligation to cure would begin immediately and extend for at least some reasonable period of time well that's a new argument you are i've not heard that before and second the contractual language is clear that must describe that time and that time by definition must expire before any repurchase obligation can kick in and so from the standpoint of platinum the letters come the letters go it looks to them they get the initial repurchase letter it doesn't say anything about your it says that repurchase is now required and you have thirty days to confirm repurchase i subsequently took the position that it had never actually demanded repurchase so from a repurchase demand c m i is supposed to infer that that is not actually a repurchase demand but a cure notice and we also know that this was not the situation that was followed in all cases for all correspond example of the initial and final repurchase letters to colorado savings bank which very clearly said sure or reproaches is  required by august some date i believe it was two thousand and nine so my clearly knows and understands how to give a valid your notice and how to properly prescribe time but you have to read i think another principle you have to follow is you got to read all three letters together you can't there's no requirement that that anything be in one particular letter not there's actually no requirement of it of any specific or particular language even but what's wrong with the argument that i'm the initial letter you're told are going to require us to repurchase that's something you can't hear but what you can do is you can work with us to try to convince them that they're wrong don't re purchase and these are the problems that freddie and fannie have identified let's work together to see if we can solve those problems and convince them not to force us to repurchase because the that it was insufficient to trigger any obligation by platinum it gives notice of a potential breach but then you look at the second letter you've got that's why i say god look at all three letters right and the first letter it does not at that point in time has not made an actual determination of breach  a breach of the fact which is required they have to exercise a contractual discretion to determine that there is a defect before they can demand that platinum correct  in the as of the study notification letter c m i had not done that in fact in least five of the cases in these seven loans at that they were still fighting with  freddie over whether or not there was an actual defect and although the response was voluntary we did provide some assistance but i mean isn't that clear in part of that first letter that are going to require us to repurchase these loans which means that we're going to sell back to you i last between the two of us we can convince fannie and freddie they're wrong so let's work together i mean you knew that that was what that was what the weather's course and we said one thing several instances we argue below and it's in the record on appeal that my repurchased the loans voluntarily and had no actual obligation to do so and one of thousand and seven tax returns are required because they were not available at the time of origination another example might be where the loan or the second example do or breach by correspondent fannie mae be required to repurchase a loan due to something that turned out not to be a breach by the correspondent was  counsel what if i think opposing counsel says well what if what if there's no way to secure it what if there's no way to correct or cure it c m i knows that citi mortgage knows that so they say well let's not even provide the notice we don't need to provide the notice because you can't cure it this kind of breach just can't be cured you violated our underwriting criteria you cannot cure that what's your response that you need did they need to send you a notice that says please correct or cure any of the sectional eleven defects original section eleven defects one through five as incurable not all of them by the way involve underwriting related issues as n in page thirty two of our brief subsections three and five are unrelated underwriting at all so the notion that are contractually in my little doesn't follow from platinums view of the contract now particularly and we haven't i'm yours and i want to point out that to a significant extent an argument that c m i did not oppose below and in fact on their rule fifty nine emotion they sought to exploit the condition finding by arguing that platinum had not adequately pled condition precedent in its answer among other places but so we would contend that it is a condition precedent and condition precedence as we know in our brief can not be substantially perform and prejudice is not a requirement so even if a loan were incurable if it's a condition precedent you still have to comply with it and i would argue that from the plain contractual language even if it isn't a condition precedent it is as we also argue in our brief at the very least essential element of the repurchase cause of action because the claim doesn't even grew until the contracts will be mandated cure period expires without the defect having been cured so the notion that there is some class of defects out there that are uncurable is not contained anywhere in the language of section eleven and exclusive discretion determines that such a repurchase must be made that triggers section four again its c m i's discretion is recognized by this court in chicago bancorp as u the national gear case we cited in our reply brief is particularly relevant here that there there was a cure provision notice notice for a cure provision but they didn't give any notice at all they just terminated the contract and the what the grey against the male case is also relevant because there they held that where the correction in cure language appears in the contract it doesn't have to reappear in the notice you read the two together the the platinum people are obviously charged with knowledge of what's in their contract when they get the notice provision specifying thirty days they know that that means that cure provision is being implemented whether whether those words are used or not but it's clear here that they construed that first letter to mean as you said judge malloy let's get together and try to persuade fannie and freddie that this isn't a problem failing that we're going to own this one can i ask you one real quick question in the initial sighting ladder you make reference to an whether we should file an appeal is there  i think that's in the in the deal a done but wherever it is there is some reference to an appeal and that to me that means come on let's go talk to them and see if we can talk him out of their position thank you walsh thank you also mr jenkins court appreciates your presence in the argument that you provided to the court this morning and i will take the case under advisement and render decision in due course thank you uncork because that concludes our business for the morning that being the case will