just more than seven million dollars principal bonds paying ten percent interest issued by the province of mendoza he was one of the very few investors in the two hundred fifty million dollar offering who did not agree to the province's two thousand and four exchange offer to replace his bonds with ones that paid less or interest thereafter mendoza defaulted on a balance bonds and to this day has not paid any of the principal or any interest on the bond  of the bonds required that mendoza make by annual interest payments quote until payments of the principal has been made close quote and on certification from this court in the argentina litigation the new york court of appeals and m l capital held that such language means what it means but the promise to pay interest and tell principle is paid is enforceable and requires the maker to continue to pay interest payments even after the maturity date even though the principal can't be sued on any more because the statutes run those interest payments could be sued on forever for the next one hundred years right we read the elemental opinion to not lead to that conclusion the court cites a newer court of appeals case from eight hundred eighty four that says until the principle is paid or the contract is merged in a judgment so it is our position that once this case is concluded that that would foreclose and he suggests this case for the interest once this case is concluded yes your hon r you have a right to keep suing every six months it is our position that that case would foreclose that possibility that once this case results in a judgment pursuant to that new york court of appeals case interests paying the right to continuing interest payments in extra completely linked to the principal obligations such that when the principal obligation can no longer be enforced because the statute of limitations has r what we're talking four years or six years that the ability to keep pursuing interest obligations also terminates tell me why you don't think that because they are the new york court of appeals to  extinguishes all claims for interest even if they've already been accruing and even if that statue of limitations has not yet run and i think even mendoza recognizes that the district court got that wrong it's actually of limitations had not run on the interest or on the princ the interest payments so an interest payment that accrued a year before for example the principal becomes time barred but in your case you don't sue until some ten years after the principal was due is that right so so i mean let's not talk about what one of your claims might be might be viable are you disputing their view that the the principle obligation or the interest patient doesn't go on for ever eat and when the statute of limitations on the principle lands absolutely that is not new york law they claim it only why because i don't think that new york has spoken clearly on that subject and i need you to help us out ok while they claim it's black letter law all they have is a cite to willesden and a c f cite to a one nine hundred fifty new york trial court decision that relies on a delaware statutory interpretation new york your second interest in usury says it quite clear it's explicit it says that the if you've if the contract provides for post maturity interest then it is quite clear that the separate action may be brought for default in post maturity interest even though recovery of the prince of but that is barred by the statute of limitations and they have no response to that's what new york george says let's go back to where we started with the question of judge strone when does that end how long can you sue assuming that you are correct in your interpretation that you can sue even after the principle is barred by statute of limitations how long can you sue on the interest well i understand that the district court was uncomfortable with the concept that the interest would accrue indefinitely but that frankly is what the province of mendoza promised to do they promised when they barred mr agile as the money would be for position your honor that counsel off any claims for interest in the future that would be our position that once you've that's all merged into judgment as the o'brien case the eight hundred eighty four o'brien case makes clear they can either if they want to end this they can pay the principle which more interest payments that go back say four years because i view the court of appeals citation to the o'brien case in the m l capital case to provide a method of analogy it says the either the principle is paid issue in that case but the point that's primary here is that it indorsed and espoused a clear new york policy in favor of the payment of interest post maturity those are what the words the magic words that are in this indenture and require the continue to pay interest in that case involved a timely claim on principle and so what we don't know is how the new york court of appeals would view the interest question in the absence of a timely claim on principle that is correct your honor the court did not have the opportunity to opine on the issue and i will say that the underlying additionally the fundamental underpinnings of new york law support the that there should be no connection between a principal claim and the interest claim here statue limitations is an affirmative defense  procedural barrier and this court made clear in cloverleaf realty that it doesn't extinguish the underlying obligation so if the underlying debt continues to exist why can it not continue to accrue interest as provided for by the  the underlying debt does not continue to exist because the statute of limitations has run on collecting that data i don't think that's new york law new york law says it's vulnerable to an affirmative defense of statute of limitations that is a procedural barrier it doesn't as discoursed said in cloverleaf it does not extinguish the underlying obligation that debt as a corpus should continue to exist and should continue to be able to accrue interest it doesn't evaporated can't be sued on once the statute of limitations has expired the remedy is subject to an affirmative defense it can be sued on but it cannot be ultimately collected because it's vulnerable to an affirmative defense but that does not under longstanding new york law if law generally force but we would not it was not our position that we would be able to come back and double dip or come back our interest find a principled basis for that and i'm not sure i i see how consistent with what you are arguing we have anything other than a debt that even though it's a board by the statute of limitations continues to establish interest obligations forever and according from the new york court of appeals in the animal cases it says when the parties direct interest on principle accrues at a particular rate until the principal shall be paid this extends the effectiveness of the contracts interest rate provision beyond the data maturity so that it quote governs until payment of the principle or until the contract is merged in judgment quoting the o'brian case so there are the two alternatives if the new york court of appeals provides these merged in the judgment you're only suing for interest paying it doesn't extinguish the debt under your theory the debt would be ultimately all subsumed in a judgement that's what the court of appeals is saying there are two outcomes here otherwise it's an six years of interest which is what you're saying you're entitled to sue for is more than the principle that's now no not there seven million dollars about how they would pay the principal because it was less than the interest that was but six years of interest if that's all you can sue for is and isn't the equivalent of the outstanding debt that's true your honor i mean we a you from clearly got leave for the the province of mendoza the district court was correct and i think he started at the right place going back to first principles he cited the white hawthorn case which in turn cited the old new york case of not versus green and it talks about when does a cause of action accrue for purposes of the statue of limitation and the quote is a cause of action accrues for the purpose of setting the statute in motion as soon as the creditor by his own act and in spite of the debtor can make the demand payable so here upon maturity of this bond in two thousand and seven the creditor the plaintive had the right to bring forward a claim for principle plus all interest owing in told the principal was paid and how do we know that we know that because in the indenture at four point six which is it a thirty three of the appendix which he cited in his complaint and which judgment rare oh sites in his decision says each bond holder shall have the right to receive payment of the principal of interest on its bonds on the stated maturity in such bond and to institute suit or the informant enforcement of any such payment were only interest payments and why hawthorne before the due to mature no i know because that also had the in toll paid language and so you had a bond that had been accelerated and so you would have had following in  an obligation on the part of the public to continue to pay interest of the contractual rate i'm just talking about white hot or no or my understanding of the cases that those were all interest payments that were missed before the maturity date arrived there was one accelerated bond the brady bond which the judge talks about but you're right that white hawthorn did not get into the back and forth that were on here today but the important thing for white hawthorn and for with the judge to below is to focus on when this claim of cruz and if your honor also looks at the indenture section four point one which is it a thirty one of the joint appendix it says the providence province covenants that there's an a in a b and the b says in case there shall be a default in the payment of all or any part of the principal of any of the bonds when the same shall become due and payable upon maturity or acceleration the province shell pay the whole amount that then shall have become due and payable on all such bonds as the case may be an perenna with interest to the date of such payment upon the overdue principle and to the extent enforceable interest on that interest so again it's clear from the document here the governing document that the right to make this claim for this interest that was due on past due principle crystallized at maturity and so from then the statute begins to run under basic black letter new york principals one i don't quite understand that there seems to be  so you have debt maturing or being accelerated by a creditor at that moment then the clock begins to run for you to do something under your statue limitations or here your contractual prescription period so you have to bring that claim and that claim is going to be because no one sues in the immediate day of default it'll be maybe a year later sixty days later whatever it is and then at that point you're suing for the principal and then you're also saying as well as all interest as it says in this document all interest that is accruing on that principle and it continues to run until the court enters a judgment and so that is how the suit is resolved and that is what anna mel did but that is what this point is not done because the the maturity came and the plaintiffs did nothing for a decade and the further important language is in the terms and conditions of this bond section fifteen which is a sixty eight of the joint appendix and it says very clearly all claims against the province for payment of principal or interest shall be prescribed unless made within four years from the date when such payment first became do is we need this for purposes of this appeal a prescription period actually extinguishes the right not just the remedy when you think about a statue of limitations with mr hofner is saying that the special mutation just takes away the remedy and not the right the prescription that really raised a factual issue because it's not interested he said i don't need to get there because if you've got the four year prescription period or the six year special mutations these claims are time barred but the recognizing the acceleration period which the court did in white hawthorn would mean that it is the statute ran even sooner because the acceleration happened in two thousand and four but again that's neither here nor there given the proof for the acceleration or was there or any proof that i know the judge was not interested in that but did you put in any document it was a motion to dismiss your honor so i was only able to reference the fact that it happened and i think that's why the judge said we can just look at the maturity date and we don't have to get into issues of acceleration but that would be an issue if folks didn't think what's presented here is dispositive of these claims but this results which when you read the actual document indenture the terms of conditions chose when they're right accrued and therefore that started the clock and that's not versus green that's the environment scase that is cited in our brief and they're all of a piece with the common sense principle that will stay and articulate and that's in the brief that when the principal debt is barred by the statute of limitations the claim for interest whether contracted for or not is also barred and that makes sense judge droney because otherwise we get into the forever problem the vs poland case illustrates that exactly a case brought find would mean that all of a sudden bonds from the one nine hundred thirty s bond for the one nine hundred forty s plaintiff be showing up and say this bond is long since expired in time barred but i get the last six years of interest preceding this lawsuit thank you very much that can't be the right result and i don't think here is to be what they were saying and m l no no your honor that's not and a mellow was simply answering the question whether the the argentine government was saying that all we know as a matter of pre judgement interest is interest at the contract rate because the until paid lng which simply is saying when thinking about prejudgment interest you the courts use the contract as opposed to the c p l are five thousand and one statutory ra amelle said no the until paid lange which means that that obligation to pay interest itself is a contractual obligation so it can then bear or have applied to it the nine percent five thousand one c p l are nine percent statutory rape that's all it held it's said that that is a function of the contract and therefore can draw that extra interest it did not say when that claim accrues the matter the statute of limitations and again and  was timely and m l brought their claim and so it shows people not to do this and they know how to follow the way these things work which is maturity or acceleration hits you bring your claim within the statute such limitations of prescription period that claim and it says very clearly here is principle and all interest accruing intell the payment of my principal occurs and so that's what happened m l didn't say anything about stachel mutations running forever or white hawthorn and what it did and what the court did here you still have to start somewhere where did this claim and when did this claim accrue and the indenture language makes clear it accrued upon maturity and that's why the interest claim follows the principle claim i understand it could be you know you one way through all these cases and they're old cases and again the alternative you falls back on is from a realm of mortgage cases from the thirty's in the forty's that derive from moratorium law and so there's a lot of stuff out there and you say where is the exact match we think there is a match if you look at the cases concededly out of this district the cases that we cite in re hall gate and clarke and the eight in cases cited in the torah case which also states that wilson principal about interest going with the principle of one's time barred the other follows it so i think it's all it's all there in black letter new york law and i think if you do the analysis of the district court did which is when a disclaimer crew look at the indenture language it clearly accrued upon the maturity of the principle then you would affirm the district court's ruling we should ask the new york court of appeals that help us out here i don't think so your honor because again in the classic case you find case law on the specific question that's all over the map and here again no one is interpret in an m l in this way it's not like the standard charter case where there was a  this case but but there's usually you've got for example in the standard charter case where there's a question about whether koehler that decision on the turnover statute cover the separate the rule you had decisions in the new york state and federal courts are all over the map so it was clearly right for certification in your court of appeals please decide but when here you've got no support for his position and you've got sort of basic application of the basic rules for ours and no court applying in the mehlis he kaplan case this is one of those cases i was describing earlier about being about mortgages and specifically the enactment in the one thousand nine hundred thirty three of the moratorium act and the inaccurate of that by the new york state legislature which prevented foreclosures for failures to play principal basically had the effect of as long as the person paid interest and taxes basically had the effect of divorcing the requirement to pay principal from the requirement to pay interest in taxes and so you have a series of rules and decisions that come up in that context so the interest obligation still lives whereas the principle obligation is something that can't be enforced or has been stated by the new york legislature and said look it looks like the principal claim you can't bring it or it's otherwise time barred we still have this interest obligation very different situation here and in fact that kaplan case specifically says it is this is not the case of an ordinary promis without security so in other words those cases are clearly limited to that area of the law the mortgage realm in a specific period i also don't think any of those cases go past the period late one nine hundred fifty s because again the mor again but was it repealed but that i don't know your honor i don't know but i would just say if you look at those cases you see they're very an opposite to the situation we have here we don't have that split between the obligations and we have contractual language that very clearly says once principle matures if you're not paid that's the time to ask for principle and all interest that's accruing and it's got to be the case because otherwise you get into the infinity bond situation  opposing counsel answer the infinity question quite well said once i sue and get my for six years it just that that's the end of the case it's nice for him to say that but then after the judgment is entered six years passes and someone comes along and says well merger as the second circuit is held is only a species of race judicata and ray should have caught only brings claims that were brought or could have been brought well i couldna brought these claims for interest because they crewed after my judgment on his theory so there is no limiting principle there's no principled basis to accept his theory unless you go with the infinity bond concept and that that is clearly never been a part of new york jurisprudence it could wait and thank you judgment those the two alternatives for resolving the case let me make i want to point out a very important admission that you just heard from this difficulty and that is why hawthorne has nothing to do with the facts of this case notwithstanding that he told the district court that it had already reviewed our argument here today about the continuing accrual of interest and quote unquote rejected it and the district court relied and mr because he was counsel for argentina in the white orthon case so the district court relied on that representation and it was not in fact the case and so that's quite important for this court to understand because that really pulls out the rug from the underpinnings of the district court's legal analysis in addition judge poor i want to point out under m l capital even if there was acceleration law supporting appellants you hear certainly no black letter law on the side of the mendoza but i would recognize that there are cases and not and it it's if this court views it is helpful to