please the court my name is shannon conway representing the appellant mr kurt marin debt commission ever served for minutes for rebuttal the bad act here is not seriously disputed and can't be disputed on a motion to dismiss in any event servicing student loans known that sat on payments in some cases for several weeks and on average for over two weeks thereby attempting to collect so much additional interest before crediting a student loan borrowers payment is one of those people paying on a student loan yet known that insists that mr merrett has no remedy and that presumably melnyk can continue this practice with impunity at least until some agency some day possibly gets around to regulating it today and says that there is no remedy or are they saying you didn't plead one well the district court dismissed and did invite gave mr merrett fourteen days to amend his complaint but inherent in that invitation were these rumors legal holdings that really foreclose any opportunity to amend you know to find that the consumer protection act doesn't apply because this this act has already been regulated when there isn't a single regulation that actually speaks to the crediting of student loan borrower payments and then to find that there can't be a breach of contract because there's no provision in that contract that requires knowing that to apply payments within a certain period of time but there's it it looks like it's getting more generally that it's a breach not to credit duty to pay is a corresponding duty to credit that payment in a contract that's all about the payment of a debt so we're saying we're contracts or don't address this many courts have found and or applied the mailbox rule saying look if you're not going to dictate when a payment is deemed received then we're going to dictate that it's when the bar were paid mailed it but in the alternative it's got to be upon receipt by no net what it can't be is two two and a half weeks up to twenty nine days after the borrower put that check in the mailbox so i'm not insisting that the mailbox will apply i'm insisting that it has to be something other than now in that spirit discretion of some time argument about receipt of the chair being the appropriate time look at the mailbox rule said mailbox rule doesn't work we're done but that ignores your receipt argument i'm just i'm struggling with why there is so much argument about having to include a no mid term when it seems to me that the appropriate thing to do here is just to interpret the contract language i agree i i i think the briefing definitely got lost in the weeds because at the end of the day it doesn't matter whether it's an executive order non executive or a contract or an integrated  integrated contract what can't be disputed is that the term payment in a contract that's all about the payment of a debt is not an essential term but at the end of the day either the contracts in ambiguous which case it should be interpreted in favor of mr marin debt or the contract is silent and which case there it's a fact issue as to whether knowing that was acting within the reasonable expectation of the parties or then good faith that could have been decided on a motion to dismiss but a below it barely and it was addressed by the district court during the hearing and then you know on appeal when none that broaden the scope of this appeal to tell the court hey there's an didn't you come here and you make the claim the district court never had the crown but that was one i mean they got a tough enough without saying they got to figure out what you want tell us lawyer on right i mean at the and terms of our pleading you know the standard being did we plead facts was sufficient particularities to state a plausible claim we absolutely did we had no additional facts to plead we put we laid it all out and  i thought the cases say the particular opt doesn't have to be regulated the question is whether the the transaction the law book in a broader s regulated it's actually exactly the opposite i mean the district court relied on the consul in case and none that relies on the continent case and in fact we rely on the consonant case which puts forward the commonsense proposition that it must be the very act that is subject to regulation not that the at that the business is regulated generally in fact known that keeps saying keeps arguing that it is almost as if there's two standards regulated or subject to regulation but the phrase subject to regulation appears nowhere in the statute that's almost manufactured on it appears and comes from and that the very act be subject to regulation not like subject to regulated like it could be one day regulated that would tear the guts out of the statue itself it's that the very act is already being regulated i mean subject to regulation already being regulated it's just it's not this double standard of isn't the problem with konkona and that that when the decision was made in the case in there with the prospect of regulation the court will that it would prior to the regulation in prospect of with the regulation but it was the very act being complained of and here we don't have any regulation speaking about the crediting of borrower payments in fact none that also cited some memoranda by the c f p be the consumer finance protection bureau and the department of education that we're talking about initiatives that you know to make it so that borrowers could expect their service or to apply their payment at the time it was received but missed but secretary device just this month withdrew those memos that even sent those initiatives into motion so at the end of the day yes the department of education and consumer finance protection bureau have looked at this issue have occurred complaints from borrowers have talked about maybe we need to make this like regulations e which does specifically say that a mortgage loan servicer must apply the payment upon receipt but the department of education has never proposed much less adopted any such regulation so i think what the notion is is that mr mayor and then all the other borrowers who have their limbs service by now and that must sit on their hands and wait for somebody some day in d c to decide to regulate that and that's that's now with the judiciary system is about there's there's a legal wrong here and there has to be a remedy a little nearer than the legal your statement of issues which were one of the  to say the core got wrong you're way out for right that the consumer protection act claim is exempted by section fifty nine dash sixteen so if we disagree with you that the nebraska deception trade practice does not a red and i just want to briefly address that deceptive trade practices since we haven't talked about it but the crediting of student loan payments is a based on a trade practice under the deceptive trade practices of limitations cannot be said to have run at the time the contract was entered into or at the time the loan money was dispersed ok what's the case that serves the the servicing is us that specifically says that there's also no case that specifically doesn't the district court relied on a heap of rain which is a case out of the d c circuit d c district court regarding the d c consumer protection act which specifically  fined the term trade practice and set forth an enumerated list of deceptive trade practices which the court found that the one is the trade practices it is a contract that sooner than two in other words when the more money is longer the notice sign is that the deceptive portion no going around saying that you're saying it's how they collect the money under this but that that didn't the see the borrower from going into the transaction i'm i'm just trying to put it right at adam's kind of where the deception we give our hour is deceived every time he sends a payment that say on april first assuming that it's going to be applied to his account somewhere around april first and then doesn't that apply to april twenty ninth so my loan you money we agree on the cerm that's deceptive practice right but if i don't credit you correctly under your repose which isn't at issue here because that means no net can service correctly for four years in the for the remainder of the loans term six years sixteen years twenty six years start doing whatever it wants applying payments whenever it wants and that note on the assumption that your payment actually means something your payment reduces your principal in a timely manner then you're deceived again every time you send a payment and then you receive an invoice and you and then you finally get your check statements and your  particular transaction or aspect of the transaction from what i hear you saying you don't have a case that says not for the deceptive trade practices or could get back to the core you were listing your your claims and we've gone through the two statutory ones and that leaves the contract line there is substantial discussion of a unilateral this being a unilateral contract and you respond a explaining why the second restatement of contracts has evidence that sort of distinction between a bilateral and a unilateral contract is no longer in existence give me a quick explanation for think turning this contract unilaterally is just an effect i just write i don't think it matters this is a contract about the payment of a long a debt and so inherent in the duty to have mr meir in debt to make that payment is a corresponding duty by now in that to credit that payment and and the terms pay isn't defined so you know it's in big us in which case the contract should be interpreted mr maritz favor or it silent and then we do need to look at whether that acted within the reasonable expectations of the parties or acted within good faith in in deciding to take so long to credit anybody millner the lender or the service or  both both and what do you keep saying it should be interpretive labor of their client if it was drafted by a third party well known that is ones they're the ones that are interpreted in the term payment to mean whenever they feel like getting around to it and so i mean if you guys agree that that's a reasonable interpretation then i guess we're done but it's not a reasonable interpretation you know they're getting all the benefit right now they're unilaterally deciding how payment is applied and mr mayor and at every other bar with a lawn service premier and that is suffering with that decision and so we're coming to the court saying you  cashed the check to the fifteenth you're presumably are earning interest yourself on that money so when when when does honestly your honor i don't i don't know i mean we haven't gotten to the discovery phase to your claims you know with regard to your claims and we didn't i probably do know the answer to that but i don't know the answer today i mean when we looked at the date of the check and i believe you looked at the indorsement of the check and then compare that to the effective date that was on this payment history not only is invoices on the payment history requested that was when there was this realisation that while there's a whole lot of time passing from the time i put that check in the mail to the time that i'm getting credited the rate but you're not saying that there's a lapse in time from the time it was paid by your bank and it was credit i'm not saying that should take care of is a brief introduction of who the parties are the players are here mr mayor and that is a bar on the student loan that was made under the federal family education loan program the phelps program of the higher education act that student loan program is highly regulated from about every corner of the regulatory universe from the department of education to the c the higher education act itself and the regulations issued promulgated by the department of education and now that the aptly is a student loan service or servic comprised of all borrowers who student loans or service by mail and after you sift through the complaint and you wade through all the excerpts yanked from the various internet blogs railing against student loan servicers and the smoke has cleared what's left of the end of the day is a hodgepodge of fatally defective  theories well but the underlying claim is really simple the claim is that you get checks and you sit on them before you could at them and that affects how the interest is compute right it's not covered by the deceptive practices because it doesn't fall within the purview and then what about the contract claim on the contract claim you heard it's allegation is basically that myriad it promised to pay the loan of the student loan back and their argument as i understand it is that the word paid and to analyze it i think that it's in the complaint i v as we understand it the mailbox rule was was what was vance to put the complaint well and is no promise made by magic to credit payments on any particular date that's going to the ground now but the complaint does doesn't seem i think this is when you receive your payment that cuts off interest if they paid in full right yes or poor partially so the question man is why is there all this difference of when you received your payment five days twenty five days is that manipulation or is that the way they mail it out i don't know but it seems to me the easy answer to this is that they're entitled to rely on when you receive the payment cuts off the interest the position i think it would be intellectually urgent for me to take the position that there isn't some claim out there and universe of claims that you could place into a complaint and survive rule trick is one get one to receive your payment when paid right and and the the appellant could have complained to the see if he had a complaint to the department of education in fact leveled huge fines against student loan servicers such as now area and discover bank for various violations  you would you agree with me i'd like a yes or no that if you receive the payment that is the day you give them credit not whether they played that book whether that should be the day you i don't mean i don't mean is there a contract or provision that says that payment is the date of receipt i'm asking you whether when you have a contract that we choir's payments or a note that requires payments whether one reads then that the unless it's otherwise specified that you're paid when you receive the payment borrowers have sued to service here and the courts have said there's no privity dismissed and is that what you argued to the just a court part that's part and parcel with the argument that there is no promise made by by no i here there is no better than no promise to credit payment as a certain date i guess that's where my struggle is because you are in effect the lender and under this contractual agreement the lender and the service are and i'm singing language in this contract that says to me that you do have responsibilities to take take receipt of the payment which you now considered is the time that it should have been accredited to the a k out if if you if you don't have a responsibility to credit that at that time how do you ever determine your other responsibilities which is to specify a light charge for each light installment if i fail to make any part of a required installment payment within fifteen days after the date it becomes due a really the only reasonable way to interpret this language and i think that's all it takes is interpretation i don't see that t with a out isn't that your responsibility under the agreement to determine if a like he used his service or does not owe a contractual duty order to contract with you i would absolutely dispute that there is no servicing agreement between the borrower and now and there is no allegation or claim that there's  far as the servicing agreement permits it to with with the lender to act on behalf of the lender i guess then that becomes a legal question if this case goes forward but right now what you have is whether there has been a climb started and that's why i'm struggling with the your responsibilities regarding receipt of payments determination of due date and calculation of light why does that not state  because the service or does not owe a contractual duty has not made any kind of promise to the borrower on who gets the late fees i believe it's the  if there is a late payment but it is a one as a payment late i guess is what we're trying if it's not made on time and what in this contract or time in her particular client i looked through i couldn't find a due date so i'm not sure when on time he says a due date will be provided for them but i haven't seen anybody say they are due date was i was not a part of the compl the allegation is that you made in service the loans in the complaint i believe maybe on my time as a man p c you can answer the question should my recollection is that there is no allegation that the that no man made  law and what about paragraph twenty three for all its student loan borrowers known it calculates interest rates and like based upon the day time and his ma y now matt has so control over the date upon which it gives each bar or credit for its monthly loan payments  klein is against you for doing that improperly yes then you're saying there's no duty there's no contra there's no duty either statutory or contractual to the borrower because you have no contract with the borrower privity there's no contract between the borrower in the service and therefore the contract but didn't you assume i mean so you're saying that they have to sue the lender for your actions i'm i'm not going to it's not my responsibility to figure out how they  obtain a remedy here fact i would not be violating my my responsibility of ideas i can just say my narrow position is this complaint today does not state a claim ok and did the just just he was more focused on the on the mailbox foolishly on the one on the mailbox rulership ok couldn't you know that it just seems to me that the issues you're writing now were not raised below and have not been resolved by the court a lot of what's been resolved by the court below is the claim that they were under two statutes there's not a cause of action and there's not a breach of contract but not on the basis that you're arguing here what they are the argument has always been but then now that never made any promise to credit payments has a certain date and that's the threshold required for any breach of contract claim that you have that you've got to show a promise by the defendant and you've got to show a breach by the defendant of that promise neither has been shown here ok so the question to us is what what  just a couple of quick points your honour's one is the complaint sued none that inc and on that servicing l c and then of course to find them together and made all of the allegations against both who we believe was the lender and and then in the appellate briefing there were a lot of arguments made by now certainly in the one footnote when it disclaimed any duties under the contract and talked about the limited duties that the lender had or how they want duties but discretionary acts so that's primarily the unilateral contract argument that we've already discussed right in saying he didn't raise it below no i'm just saying that what if you didn't understand there to be claims against known that the lender then why make so many arguments over the lender has no duties ok and then the other thing that i want to address because it's kind of been swept under an eye is that the consumer protection act claim  we really really believe that it is not exempt under the regular under the exemption and i know you know that mr kaplan talked about all the regulations but there is no regulation at all that discussed the timing of crediting student loan payments and the counseling case just want to reiterate that if you read it yes it held that the installment loan at issue there you know that the very act complained of a subject to regulation in all the other cases involving the demurrer nebraska department of banking and finance it seems like the supreme court of nebraska just kind of oh well we found that alone is already regulated by the department of finance and banking of nebraska but there is is not enough for the act for the business to be regulated generally so it's not enough that student loan servicing is subject to a pranav aliyev of regulations what matters is that the very act of crediting student loan  that who's injected this or subject to regulation that's not in the statute a plain reading of the statute and truthfully a plain reading of consummate what it really means and what the court was really saying about that exemption it could be you guys it could be the district court it could be the nebraska supreme court isn't necessary but what do you do with the banking cases the banking cases or exactly that it's the nebraska supreme court giving deference to the nebraska department of banking and consummate who did go through the analysis in found that the very installment loan at issue was regulated by the department of banking and subject to the installment loan act of nebraska and then the other cases they really didn't talk about the meaning of the exemption hydro flow mccall they just said oh well we've already held that this is an installment loan or industrial loan and the department when that they just said we've already addressed this issue will you saying they were wrong those no i'm saying if they relied on consignment to find that that particular loan at issue was already subject to the regulation of the nebraska department of banking and finance that's not wrong i'm just saying the later cases the court didn't really go into an analysis of what the statute minute just said oh here's this kind of loan again and we've already held that this kind of loan is exempt under the statute and you're saying this is not regulate this is not regular loneliest wake of the it isn't the same thing this type of local yeah but that issue in the banking cases were things like opening an account well the department of finance and banking regulator all things with practice and procedure of banks including opening an account what is here clear from the face of the of every regulation they say and underscored by all the other sources they say is that it's not regulated it's being looked at as being thought about but it's not fair to