and i would like to have ten minutes for american refuted mr off you may proceed with you thank you very much in in preparation for this argument what occurred to me is there's actually a lot points on which the parties agree and i briefly run through those we agree that this appeal concerns an issue of contract interpretation we agreed that massachusetts contract principles apply here we agree that under massachusetts contract principles the best evidence of the parties intent is the words that they choose we agree that under messages its contract principles those words must be given their pla ordinary meaning we agree that here the parties could have chosen a number of different ways to measure sales performance they could have chosen terms like net that sales proceeds could have been any any number of ways to get across the point of net if that was their intent but the word net never appears in the country the word that appears in the contract is gross sales and gross sales prices and then is a term that has a plane in ordinary meaning a gross sales price is a total purchase price of total sales price without reductions without allowances like trade in allowances and thus if you apply that plane in the ordinary meaning here the appellant sold five million nineteen thousand five hundred dollars worth units and met the sales benchmark that was required to be met the reason why summary judgment was entered here was because the trial court came to the conclusion that it would have been more logical for the parties to measure sales performance by some type of a net measurement tools something like net sales proceeds are net sales prices and so in the trial court's view he should have he should ignore the plain meaning of the term gross sales price and apply that sales price but they're ruling conflicts with massachusetts contract principles the trial court did not have that this question to apply anything order other than the plain ordinary mean up the term crow sales price indeed if the parties want it that turned to have any meaning other than its plain ordinary meaning they could have defined the term in the hat trick there were plenty of terms in this contract that there's plenty of reasons why establish shouldn't apply here especially because a stop was generally an issue of fact and it has multiple elements and virtually all of those elements involve issues of fact here when your honour's talking about that time that  said tell us if there's something wrong we're talking about a man or a matter of hours they said tell us what's wrong with our own summary by the words they presented us with a summary of what they thought were all the sales and now were given  hours to figure out where their own mistakes are and we did find some of those mistakes quickly and identified them in their own chart was correct in that respect but to find this mistake involving the transaction you to show that the youth you had the five million dollars threshold it's not for them to say it's your burden it's for if they think we didn't make the threshold it's for it's up to them to say here's all the transactions we think occurred over the last year here's what we think the gross sales price for are these transactions and it's less than five million dollars and then now the reason you to come forward and you didn't come forward and say anything about the seventy thousand dollars you said about some other things but  to do anything and then they proceed with the further with the action i think it's an overstatement to say that the plaintiff didn't do anything the plaintiff didn't catch fidelity's mistake in the manner in not taking i'm not taking up positions i'm saying the charge that they provided did not say we're giving you credit for twenty five thousand dollars for this transaction the transaction didn't even if you're on the right downs and you're still under the five million so contemporaneous transaction back in its refer to it as a sale all the contemporaneous transaction backus refer to it as having a purchase price of ninety five thousand dollars in a trade in allowance of seventy five thousand i'm sorry someone else that's not so if you can't reach the five million and in order for you to get there you have to double count the seventy thousand out which came in in a different period had nothing to do with this period of time it with these people were just exchanging for a different space of pay twenty five bells now dexter and then the other speed were sold so you can't have a two way that seems to me you're going to have a twice it's the only way you can say we're trying to have it twice is if the if the sales goals had to be met by determination of proceeds coming in that that was not that was not the sales measurements all the sales measurements all was gross sales prices and when the when those parking units were sold in the relevant period for ninety five thousand dollars and all the transaction documents say that's the sales price the next the sales price it's not a question of double counting it's all good albeit a question of double counting if the sales measurement tool was based on that but it's not based on that it's based on gross and every time fatality did a chart they always listed the total purchase prices not total purchase prices less and a kind of reductions or allowances there were always all kinds of reductions in allowances with all these transactions and nobody prepared charts to say ok let's go through the transaction back mix and see was the buyer given some kind of a credit here was or was a reduction allowed here was one can go back and try and rewrite the contract because maybe it would have made more sense to structure the contract that way at the beginning but of course if the if the contract was structured along terms of net or proceeds or something like that there wouldn't have been a five million dollar number would have been a lesser number the reason why the number was so high is because of course the numbers are going to be high for talking about gross sales figures fields who just clear something up for me is it true that fidelity got all the figures from the borrower that they put in that year is that where they got the information i'm sorry i didn't notice it did fidelity get the information that they have on the chart from the borrow did you provide them with information concerning your  demonstrated that absolutely they knew about it in fact they got it checked out of this transaction they reject received a partial payment when this transaction closed and the notation it was a wire transfer in the notation right on the wire transfer demonstrated that it was their share of the proceeds from the sale of two parking units so that so they knew about this transaction they weren't depending on my client to provide them with the out of eight they had a chance to keep a running total total all the way through and although it is after it's correct that the contract talks about a five million dollar requirement there's plenty of one massachusetts that says substantial compliance is an issue of fact in this point of law in massachusetts that says where or where you have a patrick that is substantially complied with the other side party to the other side of the transaction might have a claim for damages but they don't have a right to just terminate the contract and hence what happened the realty you're talking with the lease that case yes well at least that case was different in that both sides there were in the fault that that's not the case it so i don't see how you can play lease that i'm not suggesting that the facts are the same i'm talking about lease it is one case a good part of the number of cases that say as a principle of massachusetts contract law that if one of the sides is is it is in breach facts are very different because both sides were in the form here there were that there was a default ok they didn't have to for beer they decided to for beer now there are many reasons why you know th it doesn't mean that because you your sales were four million nine hundred forty one thousand five hundred that that gives the other side you believe he deserved just terminate the entire contract the principle of law under why do we need to go any further than this for  sophisticated parties if there was supposed to be a strict compliance standard that could have easily been written into the contract it wasn't so because there is not a strict compliance standard written into the contract the fallback position is you go to massachusetts principles of contract interpretation and massachusetts principles of captured the ter potations say in order to rescind the contract there has to be a material breach and being and being fifty thousand dollars short now believe the shortfall but if if the trial court's interpretation of the term pro sales price is up health it means that the plaintiff was fifty thousand dollars short on a five million dollar requirement under mr psyching i believe but that would be deemed a material breach such that the party who has the right to rescind the contract is supposed to bring a claim for damages and that's the standard exercise any rights and remedies under the loan documents or other ways which is what they did so you're saying that we are take nor are the language of the forbearance agreement so right now easily been put in there absolutely that would overrule the the general rule in massachusetts the only material breach is grounds for recession but that's not what the pointed out at the beginning of his argument this is an agreement that the court will old quickly was an unambiguous agreement as such it was the quote stuti as a matter of law to interpret the terms of that agreement the principal purpose in construing contract is to ascertain to give effect to the parties intent at the time they entered into the agreement and it should be construed in reference to the situation the parties ryan and the objects that the agreement ninety five thousand dollars not twenty five thousand so that's his argument so i can you can have it both ways you can if it's gross then it's ninety five thousand dollars right actually i do not agree with that your honor i think you have to take the term growth closing costs if you take that definition and apply it to gross sales price that would be all monies paid in connection with the purchase of units not excluding closing costs that is a common and acceptable definition of gross sales price and one that makes sense under the terms of the forbearance agreement and the purpose for which the forbearance or claim that was entered into first of all your yes the proceeds that came in the net say the gross sales price for this transaction was twenty five thousand dollars if you can call it a sale at all and by the way here's your honor there wasn't just a matter of hours that the borrower had to address the situation the borrower had three months where it was represented by counsel in negotiating for parents agreement in which the powerhead listed every sale that had occurred on january first two thousand and nine through the date that they documented the forbearance agreement notably this parking exchange was not included as a sale that should count to explain throughout misses hours you say three months and that's agreement you will see that in section twenty one i believe it is they list the sales that should be accounted that should be counted yes kerry twenty one confirmed unit closings these are the gross sales prices that have occurred for unit sales since january first two thousand and nine lists for transactions you know thirty five to one thirty five zero to twenty one zero two and seventeen zero two and the seat proceeds that had been received in connection with those sales notably parking units six zero eight and six zero nine are nowhere to be found in the sickroom and this was an agreement that the parties started negotiating well represented by counsel in may of two thousand not it was documented in july of two thousand nine and never once was that parking space exchange brought up as a sale that should count to the aggregate sales goals then when the borrower had defaulted by over five hundred thousand dollars as of december thirty first two thousand and nine ten percent and was given a thirty day cure period the deli the delegate sent them a letter notifying them of the default notifying them of the care period and stating these are the transactions that we have counted towards the aggregate sales goal and you are five hundred three thousand dollars short that was on january fourth thereafter they made one additional sale that got them closer to one point four were five nine whatever that number is but still did not i'm sorry folks point nine four nine but still did not meet the five million dollar sales deal they had thirty days to that the fault they did not it's as simple as that your numbers and during that thirty days they could have ways to this issue and said wait a second we forgot to add this in the forbearance agreement we forgot  to tell you about it but all the same we think it should be counted to be a good sales knows so let's talk about it before you go an exercise your rights but they did not tell you can sent them a letter the end of january saying you still have not met the materiality issue your honor i think as judge noble pointed out it is not there is no massachusetts case no massachusetts law that says that materiality the sole factor of materiality is a quantitative analysis that massachusetts law does say and what the case that plaintiff greatly relies upon specifically recognizes that being leased that it says that a material breach of an agreement occurs when there is a breach of an essential and inducing feature of the contract and inaudibly the ability for the borrower to meet its sales goals to meet its ability to repay the loan and to meet these specific sales benchmarks that ha set and negotiated by the parties in the agreement was an essential and inducing feature of the contract as lisa says the breach of that obligation went to the very roots of the contract and that is the definition of a material breach as for whether or not there was a strict compliance standard because she ating under the terms of the agreement i would respectfully disagree with counsel i think if you look agreement and their failure to meet that obligation was a material breach of the agreement as for the it's equitable stoppel argument i think your honor is absolutely right there great measures to take over the management of the condo building to take over all of the responsibilities that are associated with the management of the apartment of the condo building and it was not for six months thereafter that this parking space exchange was first conjured up and asserted as a reason why the delhi should not have exercised the deed in l foreclosure and that the power had ostensibly met its five million dollar sales goals a party cannot wait for six months let another party take great actions a crate expense in good faith relying upon the upon the clear terms even agreement you had a right to do that simply is not that great a bow and at the concept of equitable stoppel clearly applies here unless you're honest have any further questions i will the notion that this transaction was simply an exchange and not a sale is is really ludicrous if if someone comes into a b m w dealer and says here's might trade and it's worth seventy thousand dollars here's twenty five thousand dollars in cash if you want to call that an exchange on an exchange doesn't change the fact that it's a sale and it doesn't change the fact that if the salesman's performance is being judged on how much in net sales he brings in you call that a twenty five thousand dollar transaction because the total purchase price minus the trade in is twenty five thousand dollars but if you're judging his performance based on gross sales price which is the measurement tour term here it's a ninety five thousand dollars sale plain and simple and the notion of rather my claim should be equitably is stopped because of the time that went by before we found out  mistake in calculating the total gross sales let's just run through the elements of equitable a stop over here the first element respondent undertook words or conduct that amounted to a misrepresentation or concealment of a material fact there's neither here my client didn't misrepresent anything to fidelity nor did my client conceal anything from fidelity and in that regard the park case makes very clear to benefit from equitable movement must have had no knowledge or means of knowing the true facts fidelity got transaction documents and every one of these transactions they had it at their disposal all the same transaction back humans that my client  they're the ones who chose to air all the documents the clear the fault in proceed on the deed in lieu of foreclosure instead of taking the time to sit down with my client and go through all the documents especially because they knew how close it was to the five million dollars benchmark or requirement whatever term you want to use it or they knew how close it was they could've taken the time to work with my client and figure out are we just a hair under five million are we just a hair over but they decided not to do that after a month went by and we had already pointed out some mistakes that they had already made we had a letter on february one two thousand and ten this is again after we've already identified a number of mistakes in their calculation that says hey you have now until no later than five pm eastern time today to point out any more mistakes it took longer than that to find this mistake but if you had left do it