keris along with my colleague ken gross for first american i have saved five minutes for a bottle there are many issues in this appeal but i'd like to focus on two first the f d i c standing and second problems with damages and that is in the trial below the big issue in this case is whether the f d i c had the right to sue first american for breach of a closing protection letter or a c p l that was issued in connection with a washington mutual loan transaction because the f d i c sold washington mutual's loan files along with the rest of all of its assets to chase bank we all know the story of the dollars pursuant to a very short thirty page form government contract and that contract that purchase agreement which the f d i c agrees is clear and unambiguous transferred all of the loan files including c p l zx like the one at issue here to chase we're here because the district court refused to consider the issue the district court refused to look at the purchase agreement and apply the close of discovery chase signed a stipulation given to it by its regulator after it had recovered and settled with first american stating that us state with the f d i c but that doesn't matter it doesn't matter because in the sixth circuit where a contract is clear and unambiguous we don't look to the parties expressions of intent we look to the clear provisions of the agreement and that is what controls where you raise the issue of standing what the basis of standing for first american to shall and whether that absolutely that is correct they are not a third party beneficiary in issue of standing is an issue of jurisdiction there is no question in this case about jurisdiction the f b i sees cases about a stranger to the contract does not have standing to interpret it all involve non thirty party beneficiaries who attempt to bring a lawsuit under a contract to have it apply and protect them and the problem with that is where you are not a third party beneficiary you can't articulate a injury to a legally protected interest because contract law does not compensate thirty party beneficiaries for injuries when the contracting parties breach the contract here however there is no question of jurisdiction first american in fact was sued and so all it is doing is pointing to evidence and in fact the f b i sees case on that point which is the deutsche bank cake case proves our point there you had deutsche bank sued the f d i c and said you retain repurchase liabilities in connection with truncheons of mortgages and so you have to buy them back from me the purchase agreement the same one here the purchase agreement says you have to buy them back that case is still pending some bondholders tried to intervene and tried to get protections in that corset court said you don't have standing but they didn't dismiss deutsche bank and all deutsche bank was doing in that case like first american is doing here is saying somebody has the repurchase obligations it's either the f d i c or it's chase and we think it's the f d i c and the purchase agreement is evidence of that that's what first american is doing saying somebody owns the c p l the agreement is clear that the person who owns the c p l is chase and we're simply pointing to evidence it's not a standing shoe those standing cases are all jurisdictional cases by somebody who tries to s  you've got a case in your favor the f d a actually has a case in their favor neither are binding on us i guess is just persuasiveness right that is correct it's just persuasiveness but there is there any court of appeals case or supreme court case that says whether the c p l is or is not linked with the sale or well as an open question well it's an open question with respect to the contract i think what your honor is asking me is are there any supreme are there any circuit court that said  by by nature have to move along with the title policy we cited fleet mortgage a number of other decisions in the f d i c in fact says it's industry practice that says they go together and we also point to the language of the c p o itself that says we're offering this protection when title insurance is offered but i gather there's no circuit case that you can cite that absolutely says that it goes with a lot runs with the land or runs with the sale ho sale i mean clearly the agreement carves out certain things that were not sold to chase right does so we've got to interpret what does schedule three point five say about what there's not purchase in subsection two seems to cover now what does that language mean you tell me well that language is general language if you look at that provision it comes in the context of chase keeping claims against officers and directors and auditors and all of those third parties that brought down the downfall of watch i'd say that doesn't limit i don't see auditors or officers the design of any they do taste does not purchase any interest right action claim or judgment against and the other person who's action or inaction may be related to any lawsuits that are i mean that's the language right but that but that is a subsection of the global paragraph that references all those other things it is a general provision that speaks to retaining claims against any person whose action or inaction may relate to a loss here the f d i c doesn't dispute that it didn't retain the title policy and it is impossible to try to wedge c p l into that provision when a title policy itself is not in that provision because both of them relate to first americans contractual agreement to in y relating to fraud by third parties so if the c p l was held back under that policy under that provision the title policy would have been the title policy cover different possible losses do they not do one relates to defects in title the other is fraud of your agent right but your honor's question was why is the c p l not a claim against any other person whose action or inaction may be related to any loss in my point is a title policy would by the same terms even though it and it insures against a different risk by the same terms a title policy would also be a claim against any person whose action or inaction may be related to any loss in to be clear here the action or inaction is not the fraud of the title agent right that is a derivative claim first  the title agent who clearly was engaging in fraud here was not the common law agent or first american rather simply a closing agent so the action or inaction that we're speaking of is the failure to pay on it's not the fraud itself it can't be and that's why the payment on a title policy payment on a c p l are both simply contract obligations and they have to go together at least under this provision but the last answer to that question is that's a general provision in general provisions in the contract that are is vegas that cannot trump specific provisions and there are three of them in the purchase agreement the two that i'd like to focus on is is  first that the purchase agreements sold all of washington mutual's loans which included all rights claims owned by earning to the holder of the loans secondly and more importantly it expressively sold washington mutual credit documents that was defined as any agreement relating to executed in connection with a loan the f d i c cannot contend here that that c p l was not executed in connection with the loan as a matter of fact the title policy was the consideration for executing that c p o so these were both documents tied up into the loan and when the f d i c transferred all those loan files it had to go along with it under the point eight billion and they can see they would have gotten the exact same amount whether or not that was a fraud or whether or not there was a loan included so instead they relied upon book value but book value bears no relation to the actual money they received for the loans and worse off they didn't offer any testimony as to why book value changed they simply offered some numbers that said at one point on washington mutual's books the loan was valued at this and at another point it was valued at this there was no testimony as to why for all we know it was because the real estate market crashed in two thousand and eight and had nothing to do with the fraud they are obligated to prove actual loss and they offered no testimony no testimony whatsoever of their actual loss it ended up with and the damages award in excess of the loan amount first american ended up paying four point nine million dollars on this and the loan was only for four point five because chase got three point one and the jury awarded one point eight plus interest two point two total so the end result of this because there was no damages proof is that first american paid out more than the loan amount and under the principles of double recovery neither judge patani nor the f d i c could seriously contend that under the c p l in title policy when first american insured this that it was insuring these parties or indemnifying these parties for more than their lending risk appreciate your argument your time has expired i know there's a lot to be argued here let's hear from the f b i and you'll have your full rebuttal  is pending in a district court in the district of columbia and argue that they're in the same position as the witcher bank and deutsche bank is suing j p mc in the f t i see over which of those parties assume liabilities for the closing protection letter gives you can him give the f b i three standing to bring a breach of contract claim without holding related title insurance policy so i want you to go to the language of the  involve all instruments related to these loans why wouldn't the c p l be related to the loan just like well idle policy was related to the law well first that but it doesn't say that's what makes this so messy well we can agree to disagree on that your honor it is it provides quote any right against any person whose actions may be related to any loss incurred by wishing mutual bank and clearly this is a contract right in the c p o and it's against first american whose actions are related to the last because it was its agent that committed the fraud to the absolutely clearly br cards of the c p o in the language the council cited two in section two about credit credit documents there's no definition with credit documents are and that just cannot it just cannot reconcile the three point five the f that's not that's not remarkable that the title goes with the loan but the c p o is complete is entirely different it's a contract right and they don't do it they don't dispute that it's a different risks or there's a risk that you will get in the lien on the  on the collateral for the loan there's the risk that the agent will steal the money in this case the agent stole the money and first american all due respect to strive to avoid liability for what about his argument that well but first americans had to pay four point  or the agent miss probably appropriate the four point five million dollar loan i used to make two million dollars of that loan to actually try to buy this property for himself not for the true long event there was a note for three million dollars from the people he was buying it from and two point five million other of the loan proceeds went out for other things you don't know what happened all four point five million were was just record health the actual loss was the entire four point five million now sailor defaulted on his note to the people he was buying his property from and they brought a foreclosure action against him as a result of that if you put the first american because it's obvious title insurance policy got involved and paid off the three million dollars move to the people he was supposed to buy the property ok so that's where the three million dollars comes from if then tendered first were to tender the property to the j p mc under and the parties eventually settled they had a receiver it was appointed by the district court who sold the property intended million dollars or two million dollars two million dollars attended the j p m c the d p p never got a lien on the property this was a  result of litigation caused by the fraud of first americans agent and so the issue was settled in the amount of money that was two million dollars if they received it this year received one point eight million dollars as should i be put in a better position than somebody who is a beneficiary it may not be a third party beneficiary of the contract but in this his argument we make a foreigner to a contract in a better position than others throughout the country routinely so based on that evidence the court held even if i'd known about these two things it wouldn't change one wouldn't change my mind decision but it was it proper for the district court to rely on  this this perot post discovery stipulation in order to interpret the peony agreement without first finding or determining whether or not there was a big u t in the agreement well i mean would never have made the loan at all if you know if they had known of the frog i mean is that why the whole four and a half million alone by the move was a loss you know clearly if you are the one who had failed made a four point five million dollar loan they would have lost four point five million dollars and that's that's the reality of the situation that and all that money was gone never recovered so the court held the actual losses four point five million dollars now if  hadn't failed it to try to recover that four point five million in two ways either through the title insurance policy which g p m c did or through the c p a clearly we agree you can while move couldn't recover more than four point five why couldn't lien perfect and i'm not actually alice surprised that there are other cases i mean things like what mr saylor with patriot title did was so brazen i can imagine many people trying to do this you aren't you'd be surprised there are a number of cases and like this it to florida business mortgage originator under the c p l sued for fraud and the damages were the amount of the actual loss minus what the assignee got it's exactly what we have here the only difference is  the painting agreement says that any asset transferred which there is not a designated value is transferred a book that i so the f the i c so ok will give you credit will give you actual loss of four point the p x seven was not properly admitted or i guess the argument is well he would have paid the same one point eight million dollars even if this loan were in the package and that's that's certainly true subject to double recovery so this just doesn't make any sense  sure thank you a few points under that there's theory that there didn't get any value that the loss was four and a half million dollars that means that the f t i see didn't get money on any single solitary loan among the one point eight billion dollar transaction the book value was three hundred seven billion dollars they got one point eight they have an obligation to prove damages associated with an actual loss caused by the fraud they have to show we got x amount less because of the fraud then we would have otherwise they didn't even try to do it they pointed to a fictional book value the book value of one was assets was three hundred seven billion dollars they didn't draw any correlation to the damage caused by the fraud judge donald you've focused on the closing protection letter there are provisions in there that make it clear that they had to hold title first because in protection letter says that they offer this protection when title insurance is specified for your protection when title insurance a specified for your protection not anymore because they sold it and then there's a provision in the middle of the of the paragraph that says if you and this is protection for the homeowners it says if you are a lender protected under the foregoing paragraph your borrower is protected as if this letter were dressed to your borrower if you were a lender the f d i c is not a lender and so had they had visser aided all homeowners rights to protection of this cro closing letter you know they haven't because the letter makes clear that it only goes to those who hold the loan the f d i c council referenced trying to move away from the credit documents provision a clear provision that says the f d i c has sold credit documents and they said there's no definition of credit documents i don't think they read their contract because there it is there is a specific definition and it's on page three of that thirty page agreement that defines credit documents and it defines credit documents as quote any agreement or other document relating to or executed in connection with a loan the f d i c has not stated or done that nor could they that this closing protection letter was not executed in connection with the loan it clearly was one loan four and a half million dollars and the reason they loaned it is because first american said we'll give you this closing we'll give you a title policy and we'll give you this closing protection letter in connection with your loan and then the f d i c promptly sold all of those loan files including the credit documents the standing issue remind the court that in those cases standing is jurisdiction by someone who is trying to sue here that is not what we have if this agreement said we hereby convey the closing protection letter regarding that mansion up in michigan that some guy bought if that was what the agreement said and the f d i c tried to sue on it are they saying that we couldn't come in and see the agreement says that they sold it now i'm sorry you don't have standing to say that it's clear as a bell you can't simply change the contract or ignore its terms and say nobody can look at it as evidence we're not trying to enforce it we're trying to offer it as evidence ignoring the clear language of the purchase agreement to let the f b i see sue on a c p l in one hand while chase consume want to title policy on the other hand would wreak havoc on the title industry it would wreak havoc on litigation management and it culminates in all of these errors as the f t c admits in their brief c p l's are part and parcel to title insurance policies as a matter of industry practice run together if they run together every issue in this appeal goes away and the host of litigation that would follow you don't have to determine one party's damages based on a non party's recovery you don't have to invent a fictional damages theory based on book value instead of your actual loss you don't have to rely on somebody else's business records to try to figure out why somebody lowered the book value with no evidence as to why it happened and you don't have a chance of double recovery the sixth circuit by the way held that first american deeding title over for which it paid three point million dollars was payment not the two million that that j p morgan realized by waiting for two and a half years while the real estate market collapsed before they sold the house the six circuit held that that moment of deeding over title for which first american paid three point one million dollars the value clearly the value of the property at the time they sold it was payment so that's three point one plus two point two rendered here can judge patani held has to be four and a half million dollars that was the loss and so first american in order to make payment on that had to do both of those things i wanted to get that title good because that was what your title and we paid three point one million dollars chase owned both rights as it should its potential damages would be very straightforward the amount of the loan but in the f b i sees world you have to you would have to have a total recap on recovery by two separate litigants in separate proceedings and how do you determine which party gets what that's what happened here does it just become a race to the courthouse with the f b i see running with the c p o in one court in j p morgan running with a title policy in the other court in order to get a recovery for the same lending risk the purchase agreement answers these issues the assets are all chases frankly so does the language of the c p l which says that it was offered only to the lender we just asked the court that implement the clear language of the agreement and the clear practice of the industry by saying that all of the loans including the credit documents in the c p s were transferred to chase thank you for your time i think once again we appreciate arguments by both so i thank you you may call the next case