the question presented before the court today by bank of popular graeme brief is did the district court err in the finding of the assignment of a life insurance policy as collateral for an s p a loan is not enforceable against the personal guarant because the assignment did not comply with the terms of the policy i think more that guaranteed loans extended on certain conditions to secure repayment of that loan in the case before the court we're talking about a six hundred ninety five thousand dollar s b a loan and mr and mrs canning were guarantors of that while the us wanted for there to be a ballot assignment putting aside the question of whether there was an anti some clause in the policy there has to be a meeting of the mines and that's where i have a concern because originally the bank wanted a life insurance policy for six hundred ninety five thousand the on the life of  to that and in fact canning delivered the policy to the bank yet after the closing on the third of december two thousand and seven the bank contacts canning and says you all loss a policy for six hundred ninety five thousand dollars how do you explain that inconsistency vs of the a meeting of the minds or your honor i think the meeting of the minds is fully bath in the five just incompetency all the answers i can't play i can ok second question why are you suing and why are you bringing a declaratory judgment action on on a limb it is to determine the rights of the parties in relation to the policy and the asylum well why do you need it why do you need the guise of a declaratory judgment action you say we're owed the the policy nothing further and that meeting of the minds your honor we believe was fully expressed by the various documents that were signed by the cannings in connection with the extension of  popular art acted the cannings to provide a copy of the policy which they ultimately did what he means ultimately i thought they did so before the closing i believe that the policy was actually delivered post closing  i want to say i think it was on the twenty fourth of the summer of two thousand i think was a post closing transaction that they actually got the policy and a copy of the signed assignment of the contract indicated that there would be a necessity of a life insurance policy on an assignment that fall asleep and there was as the court noted subsequently a loan file changed memo where when it was determined that the that's exactly the point that that we take exception it isn't that banco popular are attempted and failed to enforce the assignment against usa and in fact ultimately happened was mr cannings passing was unknown to bank a popular until mrs canning later filed for chapter seven bankruptcy and listed in her schedule that she had assets in the form wrote canning saying you need to redo this assignment and make it to a different bank go in and they didn't i don't think it was a different entity i think it was more  discrepancy regarding the anticipated lender it was merely a formality of how my name is spelt and did they do that ultimately the assignment which again is found in the record at nine ninety nine through one thousand ultimately identifies banco popular and that so the correction was not made by mr canning in connection with the assignment self but yet there's no discrepancy and there's no record clearly shows uncontroverted summary judgment evidence that there was in fact a meeting of the law but the loan was expressly contingent upon the pledge of a life insurance policy that would that might be the case but for the fact that post closing the bank sends this letter to the canning saying you need to give us a policy proceeds hundred ninety five thousand dollars again this may just be gross incompetency on the part of the bank and it stumbled all  along in its delays and cetera et cetera but just raises an issue that they're asking for six hundred ninety five thousand policy after he's already delivered one to him for five hundred thousand as i said your honor i won't venture an explanation it's not in the record below but i i will venture one myself but i think that the most clear expression other meeting of the minds is in fact the assignment that mr canning executed before notary public an delivered to the bank along with the policy well that's a strong point in your favor now after the bankruptcy proceeding this was another fact that i found surprising  mrs cannings chapter seven proceeding was taking place and the bank made an appearance but did not assert a claim or engage in an adversary proceeding the position of the bank being we had a lame on the proceeds or we had a lien on the policy which ever political we didn't need was started there it passes through bankruptcy and we can to sort of post bankruptcy why after the bankruptcy proceeding if it's in the record  why after the bankruptcy proceeding did thank all populaire contact usa and say have you paid the proceeds to ms kennedy or have you paid the proceeds on this policy i think it was in an effort to try to do some d do some due diligence on determining what exactly happened i mean certainly not all it's been clarified in the bankruptcy proceeding clarified from one perspective the information that we have from ms canning but we had no information from but that's not i don't believe a feature of the record below but that's that's my best response court on the district court and correctly and our opinion concluded that the life insurance policy prohibited an assignment of the policy owner's interest in the policy its and the the court below are relied heavily on opinion and island recreational development corp vs republic of texas savings association which was an assignment of a letter of credit and in that letter of credit there was the following express language this commitment is  nontransferable or signed up to any other individual corporation or entity unless specifically are approved by bankers capital corp or corporation thus the court concluded any attempted assignment whether absolute or what you who you can enforce that against you can't enforce it against a bonafide purchaser for value or byron the ordinary course of business so i think it's not dissimilar from that the cannings were banned by the grounds it's a pleasure to be here my name is robert tyler i represent the privilege of representing cynthia can i listen to some of the court's questions tyler why do you think this is an anti or a sign clause when it says nothing about an assignment is void or you can't make an assignment or you can't transfer an interested cetera all it says is for this to be affective against usa a you have to do a b and c and when usa i pointed out errors it was we don't have the signature of the which would be the bank and we don't have their tax number well one reason which which would not go to you can assign the us it simply you know we don't we need the signature of the asininity so we'll know to whom to they filed was that they thought it was an anti simon clause and and my perspective on the law if they sank really doesn't matter what's on which written is what matters well what's written is what matters but the insurance companies i believe and under the law have the right to control whether that contract that they're a party to that they're the obligation on they have the right to decide whether or not that that contract that they are that they are responsible for can be assigned to somebody else in this case what they said was it can be assigned but only if we if we say it can only under certain circumstances and i believe that's why it isn't anti s laws because they have the right to control how i mean why you think it says only if we say it's ok because for this to be effective against us a few words to that effect it does say that but it says this policy may be a sign only as permitted by the policy and what is permitted by the policy it means it has to be on a form acceptable to them it has to be notarized has be signed by all parties and  part of that is because i believe they have they have reporting obligations under the federal government under the under the tax laws they've got reporting obligations so they need to know who that they are they're going to be responsible for pay money to somebody and they want to know who it is they are they're going to be responsible for paying money to someone and they want to make sure it's to the right person but it's not that that they can't make an assignment unless all hours are dotted and t's are crossed like giving them a tax number thought they were their protection yes or it's for their protection it's not if they wanted to preclude in the summit they would have said you cannot assign this policy that they want to only be sure that they want i think that's certainly valid i do think they want to tip they want to only hav the lying that you would expect i mean obviously they don't want to pay twice and that's what they're trying to hoard that's absolutely correct so they don't they do not want to pay twice they don't want to be sued either you know they don't which in this instance they were but i just don't really doesn't matter what the district court said censuses on summary judgment this is to know we're review here obviously we're interested in the dish court's opinion right we've got to make this decision ourselves there's no deference and again what i'm what i was going to say was that bunker popular did not have the right to immediate possession of the policy funds why not it had the policy well first of all yes that in fact is what the assam was all about again i've got concerns about this post closing communication that mr churchill said that the policy would deliver december twenty four i just want to go back to what they say in their briefing when they cite the record on appeal they say was delivered november twenty four which was prior to the closing that's what i thought then and in terms of the meeting of the minds the issues that i have with that there's several issues one is as you point out  and said that's not sufficient that is not in the sense the assignment that he delivered to us a counsel for the bank referring to he said it was it was deliberately the at closing or after closing delivered november twenty fourth and it and it's that insurance policy the u s i don't know the policy i'm sorry i'm talking about the assignment when was the actual written assignment tendered to the bank the document that they're suing on was sent to us and to them or twenty first it was and he went to the bank and said they won't accept it unless you sign it so then he took that document and gave it to them i believe it was november twenty seventh of two thousand and seven november twenty ninth they he signed the post closing affidavit and the symbol third he promised d m k the diamond company promised to assign a policy in future six hundred ninety five thousand dollars making them the beneficiary assignment i'm just saying they continue to say this was a requirement of the policy the requirement the policy was that it be on file not some life insurance policy should have been assigned there never was one and to your point ju compensate i don't know but i do know that you can't nobody can if i were here making an argument that said the closing documents don't matter what matters is something that only one party signed and the other party rejected before the clo the operative document if i were making that that argument i would be concerned about being laughed out of court a bank cannot come in here and say the closing document doesn't matter jackson walker was  as attorney at the closing they went through and sent a letter to their clients saying these are all the documents in the closing package the post closing affidavit is listed there they're not supposed to fund the loan unless they have an assignment they obviously did not think they had an assignment on december third and yet and this is one of the reasons why we have a contempt claim in this case and yet they knew they did not have an assignment as of december third and yet my client has been through two and a half years of litigation over this when they know beyond any doubt that the this document that they are suing on they did not believe to asked us you know i've been asking that question from the beginning of this case how could it possibly be valid as to anybody else if it's not valid as to us they are this is an assignment of rights in a contract if you have general that's true in the common law that is absolutely correct however texas insurance code says that you can only assign is permitted by the past and in this case the policy says this is how you assign you've got to follow this procedure  believe the texas insurance code in conjunction with the policy itself and the other thing about that is this purported to simon itself in the fine print says that it's subject to the policy terms therefore it cannot usa says was signed the policy is by doing a b c and d and it's not onerous but they do want to know if they've got to pay somebody money they've got to pay the right person what is the significance of the fact  comply with the assignment statute but isn't the fact that he delivered the policy to banco isn't that a strong indication that there was a meeting of the minds that this is the policy we're talking about i guess it happened on november twenty fourth i never m number three forthwith before bank the popular said we're not going to sign that document so yes i mean it's certainly a strong indication of an intention to do something but the question in this case is whether that something was ever consummate thing to do something isn't the same thing is actually doing something and it's pretty clear that they never actually did it because well actually done it they did give it to us a we know quite often and i think we could take judicial notice of this but this is just part of my question  i recall in the quote olden days close quote when you were issued an insurance policy say a life insurance policy they told you to make sure you secure this and take good care of it cetera et cetera so is it in the record that when miss canning applied to be applied for the benefits of this policy did us a say to her we will pay the policy once you deliberate to us that's a no request for the policy from they say they have it they never gave it to her i mean if they have it how could she give it to them but we live in an electronic age where the originals of policies i don't i in order for the bankruptcy discharge affects everything in this case schedules she scheduled the insurance money they knew that she had received the insurance money when they were notified this is a conversion claim as you point out it's not too soon to unfortunately  again as to who they are but they're asking for a declaration it's valid and they're also asking for a declaration now on her house when they first filed this lawsuit for equitable lien and whatever that means on her house they're but their claim is for conversion and their prayer is for the judge in the matter of five hundred thousand dollars how can that possibly be in ram by definition always been troubling to me about this case they'd they'd that they will not tell you ever that they had there ever had the right to mediate possession of this money from us usa did not owe them a nickel canning to the bank the bank stands in mr cannings shoes and has a right to the money on the policy at his death so why did they have a right to immediate possession of a month from u  i've never heard them say that they had ever had a claim against you as a they have never said that they say that the bank was discharged by payment to the beneficiary their bank is only discharged if they're on notice if they're not i notice of the balbus i'm there clearly i notice of this document if they have it again we're maybe taking up undue time they maybe didn't have a legal remedy against us and they didn't but they did have the right to the immediate possession if they could show a look here's our assignment give us the money and the critical thing to me is you say told it wasn't valid they never said it was if they had told us a they thought it was valid usa would have been applied the funds because they're they're going to be careful it can s popular are drafted and sent to the cannings and said sign this and send it to usa it's a usa a wife can do for the fact that mrs canning didn't sign it is meller held in that case found that the assignment is informal against the beneficiary regardless of whether the asylum is accepted by the life insurance company that's exactly what we have here exactly what we h and the court has made mention of a meeting of the minds and i would go further to say not only was there a meeting of minds there was consideration given the loan was exten entitled to immediate possession of the proceeds period whether we had a remedy against usa is a different question but it's a question is not determined of in this case because usa by the time we found out about it usa had already paid out and whether or not usa asked for coffee the policy or not what we do know is that miss canning in making her application and this is found at record number  would you what would you how would you write i would write it such that banco popular are is summary judgment should have been granted by the district court and because there is no material fact issue here has crossed motions for summary judgment the courts of grant banco popular are the relief requested in the summary judgment is that while we're asking for a finding that the proceeds were converted by mrs canning and we're asking for an equitable link all those proceeds and the use of those proceeds including her home that she used the proceeds to purchase essentially we were an involuntary purchase money  that is the truth of the matter we we are the mortgagee of that house we didn't intend to be so but we are because she took our money and bought a house level i mean i have to if if i'm standing here in this microphone to fall in my pocket and i don't notice and i just turn a walk out i don't know that i'd be conversion but if i pick it up and put it in my pocket and walk out yeah well i've converted  honestly thought the assignment was not valid and she accepted the money i mean would that be a conversion well we must say that it is because the assignment was valid as to her the fact that she didn't believe it or was valid doesn't mean that she has the right to the property the question is did banco popular have a legal right to the property by virtue of the assignment and we say of course we did had it is common in my practice i were speaking about the attorney who followed the litigation below that's me it's common in my practice to couple a conversion claim with a declaratory judgment