our time with the appellant i don't know that that makes sense and i don't know that we are a lot truly aligned with any party in this case all i have is about five minutes of argument anyway if i may suggest that nobody get dinged for my five minutes and i'll just do it separately after think of asia completes its argument that you're more aligned with bank of asia and you are with the r member anyway reaching that is correct but i still have my own five minutes with something to say that whatever please the court is just we need to know obviously before we to me so far but i didn't see why the bank of asia wasn't the holder in due course let me tell you what i'm thinking so you can educate me if i've got it wrong it looks to me like ridge chamber educated general bank on the fact that it wasn't paying the full amount of the bills of exchange general bank but general banks only responsibility is as  collecting bank to get the money and send it to bank of asia as far as the deal that red chamber had with the fish exporter in thailand i don't see where that's any of the bank of asia is concerned as long as the bills of exchange are being paid in full each time which they were to me it seemed analogous to if i have a kid at college and he gets an apartment and i tell him well you're going to pay one hundred dollars a month of the ramp out of your summer earnings and i'll pay the rest of the rent on your apartment the landlord is indifferent as long as he gets all the money in the landlord is just like bank of asia if i were to have a fight with my kid in college and quit sending the money for the rest of the rent then the landlord could kick my kick kid out if he couldn't come up with the whole rent no problem and the landlord is not responsible for whatever the deal is between me and my kid it seemed to me that bank of asia was in that position long as they get all the money they don't care it's fine the bill of exchange is being paid in full and they don't need to know the deal and once they don't get all the money they can take action against red chamber on the bills of exchange and the deal was still none of their concern because they were never a party to it there were no well you're another couple of responses that first on the agency but on this particular record where we have evidence that for example bank of asia affirmatively directed general banks to acquire red chamber why red chamber is not paying the face value of the bills of exchange where we have evidence that general bank in fact enquired why red chamber was not paying the face value the bills of exchange where we have record evidence that bank of asia directed general bank to communicate with red chamber on behalf of bank of asia we think that a reasonable trier of fact could could easily conclude that for purposes of these transactions general bank was acting as bank of asia's agent and that the communication of the consignment of the image defense fell well and you know as a matter of fact there's no question the materiality of the communication that regina had with general bank on this topic bank evasion it's reply with general bank in this very case makes it very clear that they would like probably by write you a check payable to mr thomson the amount of five hundred dollars and i come back later and say we really had a slight agreement that it was only three hundred dollars checks are the honored paid according to its tenor i under it under the under the consignment agreement there is no necessary contradiction between the face amount of bill exchange and the amount of the corner very price for the shrimp and in fact it's understood in this case read chamber pay the face value of one bill of exchange where some sort of like my have mike my check hypothetical if i give you a check for five hundred dollars can i come back later and say when it's time for the bank to pay the check was really only three hundred dollars because of our side agreement well the side of the win is that the check is a kind of security interest and that the asking you if i give you a check or some certain like these folks gave a bill of exchange and some certain can the parties to the transaction then say we really had a side agreement that the that the amount of the check and the amount of negotiable is read the payment amount  negotiable instrument is changed is that the obligation between the parties in your honour's hypothetic right i'm not talking about the underlying obligation that's a whole separate deal you can sue on the consignment agreement or whatever i'm talking about the person who winds up holding the people  negotiated by a car and i write a check as a security so i can go out and test drive the car and your honor would it were to go to sleep try to cash the check claiming that we had an agreement that i was not purchased the car i mean we're turning a three party into a two party in your answer there to judge so verman the side agreement here is between o m foods and red chamber but the bill of exchange at is signed by r chamber and it on its face appears to be negotiable and comment and it says exchange for amount of money at one hundred twenty day sight to the order of bank of asia bank of asia is not a party to that site agreement had to get to that by a car situation it's like if they had promised that he'd cover the check that's i got the responsibility or concern of whoever gets the check but transactions it knew that there was an agreement with oil in foods pursuant to which red chamber would know a price for shrimp that was based on the order barry index so we think that there's substantial evidence basically you're saying and i think your case depends on it bank of asia had actual knowledge as well as noticed that there was an agreement that made the negotiable instrument something less than it appeared to be so it was not a holder in due course that's correct it cannot out of the matter of law unconditionally accept a bill of exchange and then say we didn't mean it and i'm going to get to why them signing the bill of exchange under the i guess it could if if the bank of asia was not a holder in due course and had actual knowledge of the side agreements between red chamber and when foods i'm going to argue your honor no not even in backing and following are you are you conceding that bank of asia did have actual knowledge as well as notice absolutely not i'm not conceding that there's nothing in honoring the bill in any way bank evasion never had any actual note of that anything other than read chamber unconditionally accepting the bill of exchange my first  red chamber cannot have a strong penny to two but my second point to read chamber cannot speak out of both sides of its mouth they cannot on the one hand served that general bank is our collecting bank and it's our agent and then by its own communication to general bank in f fact make general bank its agent and dictate the scope of the agency could you talk about what your excerpt references were what we should look at and about read chambers excerpt references so that we can resolve this holder in due course if you bank of eight i gave to general bank and i'd like to go through the commercial code and then the actual instructions some helpful to see them lament that information and the general bank could get three one zero six defines what is an unconditional promise or order and it's and section b and i'm not going to read the first part of it because that's not relevant that i an express condition to payment i'm sorry a promise or order is unconditional unless it states one and express condition to payment not here to the promise or orders subject to or governed by another writing here if you look at the bills of exchange at the you are one hundred to one forty three there is not one alteration on them other than red chambers author that's what we have on the one hand as a matter of law yemen and conditional promise so they had met the end conditionally did something on the other hand they're saying now with a i mean at oral conversation contradiction your death defendant is dead they cannot raise that because they are admitting to things that they don't correspond and that's that that should be the end of the story on the that bank of asia does not have knowledge that the bill of exchange is intended by all parties to be subject to the consignment agreement and ridge chamber says that's not so there's a genuine issue of fact about whether bank of asia knew that it was subject to the consignment agreement at they knew that they were getting part of the money from   m foods and not from red chamber and they knew enough to know that red chamber was never paying the full amount even if they didn't know all of the terms focus a little more on the amount we receive for the sale of strength the market price ok is there after they started signing one hundred and twenty seven bills of exchange my argument is it's that and how do we know that let me tell you how we know that from right chambers own mouth their own admissions and the evidence i quote from page eight everett chambers opening brief the first time is their quote from the brief to the record it's both the second time it's from their brief ok their second the second time it's from their very so when  checked not checked it's totally blank if we won at general bank to give us now the us of something other than the mere fact they signed a bill of exchange  we could have s again your honor thomas and robbins appearing for all called say a general bank i would like to first address something that the appellant's council stated which was that there was some direction from bank of asia that directed general bank to make inquiries and to follow up on things since that was not part of the bank of asia's appeal against us i can't cite the court to the record but i think i at the evidence those those instructions and those requests came well after the fact as counsel for bank of asia just indicated if one looks at the instructions that were sent with the collection it says nothing about that and so i would urge the court to see to look very closely at the representation that there was some there was some direction from bank of america that we were supposed to follow up because i believe that they will concede to the court that that seem well after the fact and well down the line if you get one thousand five hundred dollars and collection fees for each something percent so this is more like a bank that gets ten dollars for processing and if they want to instrument share in a bank of asia wants to buy credit insurance let him go out and buy insurance if read chamber wants to make sure everybody knows what's going on with the deal have them make sure up front going to the bank of asia appeal against us i just have three points your honor first of all there was no evidence in the record in opposition to my summary judgment motion that there was any duty on our part to disclose this alleged statements by the red chamber to to my clients which occurred as the evidence will show as the evidence show those statements were back in december of two thousand these transactions that issue today are starting july two thousand and one and go into february two thousand and two secondly they could they should not offer any evidence in opposition to our summary judgment motion that general bank knew or had reason to know that bank of asia didn't know the deal or didn't know that there was this that there was you know these arrangements that are not part of the norm and if i could invite the court's attention to think of asia's reply brief through my answer at page twenty three to twenty four the bank of asia discusses those eighty three those prior eighty three deals and bank of asia admits that it knew it was getting paid sometimes from the bills of exchange and sometimes its own customer paid them and then went and collected from red chamber so and how with these eighty three transactions how is my client supposed to reasonably know that they have not and that they did not know of this arrangement themselves nor did bank of asia offer in opposition to my summary judgment motion that it did not in fact thank of asia is a holder in due course in this case however is a thank of asia is as cross appealing against my client saying that if this court does not find that to be the case if so facto has to reverse as to my summary judgment and i'm trying to explain to the court why that's not true because given the evidence for your record on my summary judgment motion did not put in evidence that it did not know it did not put in evidence that anything that we had no that we had no reason to know i thought i thought all you needed was we don't care if chambers argument that that there would be some into logical inconsistency i mean if the court if the court is of the belief that it doesn't make any difference as to my live billing whether or not rich are bank of asia is even if our agency responsibilities are broader and we did have a duty to tell them we wouldn't be telling them anything they didn't already know that an assert no your honor my my point that i'm making is this if the court  believes it does make a difference whether they are a holder and do pores i'd trying to point out to the court the evidence that they raised in opposition to my motion for summary judgment was still insufficient as a matter of law to create some other duty on this beat you know i mean everybody admits of course corrections do not create the duty and bank of asia in its reply brief argues that it did put into the record deposition testimony that is not the case we put into the record in our own supplemental record general banks in the summer the separate statement of uncontroverted facts and supporting evidence the bank of asia filed and if one looks at pages sixty to sixty six that is their statement of genuine issues and in their reply brief they  reply your honor first of all we it's important remember that before any of the controversy here rose red chamber bank of asia on foods acted in conformance with that with the can sign an agreement eighty eighty three it's a significant course of performance here which the under the u c c is it miscible to demonstrate the understanding the parties of the contract as for the limited agency support remember the bank of asia on the form necessarily delimit completely the or would we care what they said in a complaint there's no traditional stockholm left until they've succeeded and recovered on court and you the courts on findings of fact which were submitted by which were drafted by bank of asia and approved by the court contain analogous findings of agency and  got a fact established by the pleadings for purposes of summary judgment or if the parties stipulate to uncontroverted facts then you have a fact established for purposes of summary judgment but i don't understand what you're saying  about this case what i'm saying but perhaps in our family is that by affirmatively pleading that general bank was bank of asia's agent and that the duties that it did not just charge according to the allegations of