good morning may it please the court my name is brant welker and i'm appearing today on behalf of the tamarac accounts and i would like to reserve two minutes rebuttal please so the issue before the court today is whether the mayor existence of the second turnover order provides an absolute defense for j p morgan chase against the claims asserted by the tamarac entities for wrongful dishonor and we would suggest to the court that unless bring a court order in order to fulfill an obligation under a contract i would cite to the authorities for your honor first it's just the general black lotter black letter law that we cited in our brief about the lack of obligation to to follow or enforce a void order the second there is a case that was breached in the five cases letter of credit cases that both sides  agree for the court there is one that i think is very helpful and that's the song sheet case and in that case the beneficiary under the letter of credit tendered its draft to bay bank cheesy that there was a technical defect in the form of the draft and that it would need to be resubmitted and so on the eighteenth shaanxi submitted a second draft to draw on t that reese that ex party restraining order was not served on the agent for the commonwealth of massachusetts until the twenty fourth of october one thousand nine hundred ninety six because of that that meant that there was a period of time that song chauncey had not been served with the order and it was during that period of time that they tendered their second draft on the commonwealth of massachusetts bank liable for wrongful dishonor understand you're out of the deal the reason that i phrased it that way is judged burd we provided you his decision and he did a very thorough analysis of the jurisdictional issues and made it very clear finding in a contested action where both sides contested jurisdiction that arizona law applied well i'm sure it's a very fine decision but it still does not it did not do away with the texas case which had been on appeal and which boundary p morgan how do how does the arizona case interfere with the texas case your honor i think that brings me back to the shanty case in that case the reason i think it's helpful for the court is that it placed an affirmative duty on the bank to monitor the status of the restraining decision your honor i don't believe judge feel berg was intervening in the texas legal system and we're not asking this court to do that but we're asking this court to do is find j p morgan chase wrongful for libel for wrongful dishonor because they just disregarded the full scope of the evidence that was before it on the invest in validity of the second turnover order  valid at that point in time but you know there's a there's a concept in criminal law the fruit of the pretty poisonous tree and there's no question all courts are in agreement now that the underlying default judgment was cost only defective it because everyone it's uncontested that richard ross was never served with process your i think in the in the face of the existing texas or they could have done several things one which would have been the camera preference is they could have disregarded that order and honored the letter of credit as drawn and approved by judge carroll the second option they had is they could have prior to filing that action filed a federal declaratory judgment action in this case they waited until they had the discussion that took place between counsel at argument where j p morgan chase was put on notice that they would be sued if they paid the money to the texas courts and so they could have filed the dec action prior to paying the texas cour jurisdictional challenge because they were never start the process not named as a party prior to the issuance of the second turnover order and so the court did not have jurisdiction and we believe that that is evidence of less than good faith that they have jurisdictional challenge that would have prevented immediate payment next they could have moved the trial court for reconsideration they could have given some evidence that they were willing to challenge what was a defective order you mean he'd go back into a me judge bork meant the time this decision was raynor's only she was a state court judge she was so you have a state court judge in arizona saying it's invalid in texas you normally have his day trial court which you have a court of appeal saying it's valid would if if j p morgan failed to follow the second turnover order would they be subject to contempt i don't know your honor i don't know the answer that question there may be a possibility of some contemporary seedings so but i think those would also be subject to defense because of the lack of jurisdiction rights i'm just saying when we're saying that what we're doing now is saying then they violate their letter and and if if they would be subject to contempt by failing to do so wouldn't that indicate that they should a baby the court order that they feel they faced a question as to whether to obey your honor from a policy perspective there is a serious issue here and i think we pointed out in our briefs that yes if this court should make the determination that the merit existence of an order reduces all liability for wrongful dishonor th of the letter of credit in the commercial venture is death because then this case it would be malpractise for any attorney to allow his his client to utilize a letter of credit we had a court without jurisdiction over the beneficiary change beneficiary and now it's very uncertain as to whether the beneficiary the tamar carries will ever see this money and what the gross constitutional defects in this case services lack of service but the underlying d morgan complied and letters of credit are dead and i would respectfully request that this court make that clear in this written opinion so that the public is aware that despite the defect of a court order it out yet offers absolute awfully broad question and i haven't considered every possibility so we have from the district court judge campbell's a very fine district court judge one of the best i think that we have but he really didn't give us much more th say that that's exactly where he ends up that so long as there is any order out there j p morgan is home free following the order and the thought in my mind is is that really true there are there are situations where j p morgan even though they have an order that tells them to make a turn over would say i can't do this this order is invalid or this order has no jurisdiction its face it shows there's no jurisdiction with j p morgan still be able to say there's an order there so i'm going to do the second turn over i think it's difficult to analyze that very abstract question and i think the answer should really come based upon the turnover order that was in fact before the district court the want to shoot by the texas county court and that order the actual order was before judge campbell that order was issued by a court in texas a state where j p morgan chase and back to these facts now isn't what i wanted i'm just thought across asked hypothetically asking you can you can see that any way in which that order would be one in which j p morgan should not follow it yes i can i can conceive of a order issued by a jurisdiction where j p morgan chase bank is not present has not rendered any appearance and the bank would then not be subject to process to that extent and may be judge campbell determination is a little broad what your adversary is saying is we have one of those situations we have a situation where j p morgan if you were going to look at the entire situation would not have followed the order of court and instead would have brought an action in the federal district court in dallas or whatever and deposit the money in court and say we're going to get it is to get it just fine with us so i'm wondering whether that is one of those kinds of orders you have if j p morgan was aware that a very fine state court judge had indicated there's absolutely no jurisdiction on the other hand j p morgan has got a court order and it's gone up to the court of appeals t exas and been affirmed can j p morgan without anything further do anything further pay that money or is it just the order itself that allows j p morgan to do it or is there something else that j p morgan must do i think that's the real question i have for you it's a long question that i i think it's one that deserves an answer i think the verb used to allow is the critical point here it's not whether j p morgan was allowed to comply with the order  morgan was obligated to comply with the order the order was issued by a texas court in a state where j p morgan chase was the largest bank it had the most assets of any bank in the state at that time it's a regulated i and that's not the situation because in a pleader is a voluntary action by the bank this wasn't a voluntary action by the bank this was an involuntary action a bank was presented with an order obligating the banks to comply which was to turn over the proceeds of this letter of credit in the event that the draw was made now the proceedings in texas were very much like in a plater action because j p morgan turned over the proceeds to the clerk of court j p morgan chase was on a party that proceeding we had no stake in the outcome that proceeding we took no order exactly under one off credit a lot of letters of credit the question is whether j p morgan chase inflation wrongful dishonor it's not wrongful to comply with the court order worse courts have held that it would be wrongful to voluntarily was in fact the action of the state of texas that was in our situation though because there was no question that the order presented to j p morgan chase was in fact issued by the texas county court your opposition would say but you did know it was invalid because  sufficient for purposes of execution in arizona now the argument that's made by tamarac was presented expressly to the texas court of appeals and this is what they ruled and they ruled this in december of two thousand and three before the second issued before we tendered the fonts the court quote we reject mr ross's contention that the arizona state court order vacating the foreign judgment in arizona has the effect of fourteen that texas the fall judgment from for wants to force upon banks rather the policy should be that banks comply with court orders and that means to obtain relief from a bad court order or one that you believe is bad is a court of appeals and we see for november sixteenth two thousand and six in the texas county court i understand that hearing was vacated by mr ross the hearing is now been set for may thirty first of two thousand and seven that's not perceiving that the bank is korean decision the second korean decision says in this appeal petition richard roth seeks to review a turnover order it's never designated which turnover order is involved was the first turnover order or second turnover i've been assuming it's second but i don't know it's my understanding that the turnover or that we're talking about today is the order that was overturned by the us just as it is a that is as you understand that is the second turnover chase paid more than one point one million dollars to the custody of the texas county court the motion that's pending in texas is to take that money into resort to the custody of the clerk of court or to pay it to j p morgan chase for payment to you're not getting any money back anywhere yours or the question of whether or not what the bank did in july of two thousand and four and whether or not judge campbell's ruling in march of two thousand and five is correct that's not going to be changed by what credit so in other words let's say we were to rule in their favor and then at the may thirty one hearing the money goes and you are back to the court and they get their face value what the a potential claim against a thing more well i don't believe so for anything that happened in july of two thousand and four or that was proof for the district court when the district court ruled and march of proceeds of a lot of credit interest on those proceeds and attorneys fees and to the extent that they're not fully compensated for those things presumably they might feel that they have some uncompensated damages that they would assert against j p morgan chase bank thank you granted the relief you seeking and that may thirty first hearing there is no assurance that that money will ever be forthcoming the money was released by the texas county court to the access parties now in this court order of january this court's order of january and it did so in a supplemental brief for two reasons said first it would be inappropriate because it was outside the record and second it's because that's irrelevant i use that as an example to show that j p morgan does have the capability of receiving a court order and determining not to follow it as it's written this court specifically asked the parties to brief you had the money that was not within the knowledge of the tamarac entities all we know it was repaid to the court and then released to the