to opening argument i would have hoped to be very brief your honors i know the court resumes materials and is very familiar this is real simple already asking for is every man and there's three really good compelling reasons each want either one would be a basis for re man the first is that the court ignores the fact that there are multiple issues of fact the second is the court ignored the rule that says you have to give the nonmoving the favorable inference and the third is we couldn't finish our discovery even though we tried i'll be very brief on each one this court the sixth circuit has consistently held if there is a material issue of fact a trial court cannot grant summary judgment here it did and there are eight material issues the fact i don't need to go over all of them let me just give you a couple so the let me let me just ask you this question i mean i'm focused on this language the bank's policy is to process a siege transactions as they occur in their effect to day for the business day and which they are process you would agree that's pretty important language for everybody to come to grips with if you're ok and as i understand your claim what seems unfair about what happened your client their clients is that they tried to structure the end trains actions to avoid late fees or if they're going to have late fees as few as possible and i'm getting it right so far well they didn't intend it that way but that's how it's like what normal people observe the barman people do if they had don't have enough money in the bank yes they yes try to have a few late fees as possible yes absolutely your client sequence them in a way to do just that and then unfortunately it gets reversed along the way right here but the what's complicated about this case is the merchants which can be either an a t m or using a debit card to buy some tickets or something the merchants are this free standing player in the system and they might send their stuff off to the federal reserve one day one may do it every six hours and one might do it every two days and the part of the case that the language seems hurtful to you is it's not so much a cur i don't think that helps but it's the effective day for the business day in which they're processed in it's that language that makes it i think virtually impossible to structure the transactions in a way that minimize late fees because you just don't know what an a t m bank is going to do what a retail merchants going to do and how quickly they send it and then you're this language makes you stuck because of the word effective deed judge you are correct your assessment is accurate but what happened here is we have evidence and we had expert testimony that the bank reorder the transactions because when my client went to the bank the manager said we go from high to low she told him that and that's exactly what happened you know remember wednesday thursday i had to low and a given day or high to low like chronologically when the original merchant transaction occurred what do you mean by high to low they took the highest one get that i got it but i mean i'm saying for the day in which they get them from the federal reserve or the day in which the transaction with the merchant happened we don't know that's why discovery was necessary see these submitted an affidavit from an employee which is pure hearsay referring to the federal reserve it's hearsay there's no federal reserve testimony we can't even get the documents from them the original documents from the federal reserve to see when they were processed junk you're right it's hard but it can be done through discovery but we didn't get the discovery and we submitted expert witness a banking expert who said these merchants they don't hold the transaction tell me tell me this do you have a cognize of a claim if the sequencing is your claim the flag star has to process this based on the date of the merchant transactions or do you agree the date of the merchant transactions is irrelevant no we believe it is relevant ok so you think you think flag stars duty is you have the transactions over the course of five days and the time it takes for it to get to flag stare just turns on the happenstance of what each merchant does when they get to the federal reserve and when they get to five star so that's a legal question how can that possibly be right given the language effective date so you have to don't talk about discovery what how does the word effective date consistent with the fact pattern i just gave you because that is not what occurred here my client has screenshots that shows when the bank had it it shows it he has they kept changing it over the course of the four days or the us that they were there on the same day or a different day same day same day that they did the transaction in other words they would do a transaction on wednesday it appeared on wednesday they being the bank and i supply one know my client when my client did the trans am did some things on different days yes three or four days do you dispute that all of these relevant transactions came from the fare on a single day salute you dispute the absolutely simply only because you don't know is that correct and based upon our experts affidavit who and on some basis sends it to flag stars that correct that's what flag star says and we contend the federal reserve first of all that the that the financial institutions immediately they don't hold millions of dollars for a day or two that's number one number two the federal reserve doesn't hold onto four days worth of transactions and then sends it to them the other thing is when i said daily basis yes and four times a day actually four times a day the federal reserve does it what we've tried to do is find out who  bank did the reordering they don't know what how did these screenshots appear we don't know who's the person who would know this we don't know who to federal reserve did you talk to we don't know what is the effect the transaction just when understanding your theory your theory is when it finally gets to flag star their job is to hold on to this stuff for a little while because that they have to hold on to it for a couple days to make sure they're processing it from the right data transaction because again you don't know exactly when the mercians going to send it off knows that you know it's see this is where the discovery is incomplete because i'm trying to get to answering those kinds of questions judge but the word effective is a word but judge we don't know all the facts because the judge do you know during oral arguments there was a motion our motion for discovery which the magistrate judge had granted and they were appealing was still before the judge he didn't even consider it we didn't get ok which are your allegation is that effective date means when when you're in lyon when the client transacts it and the bank becomes aware of it the bank is only aware of it from the fair right no no no because they had that knowledge from the merchant because they posted it on the screen for my client so my client and any client would have a right to believe that it was processed on that wednesday and on that thursday or are you saying that the record shows that it appeared in the bank before it came from the fair yes your honor and just as a final question do you agree that this a h business would also include checks and i take it in your client's case it was all online but would it not i mean what i do something that sometimes has a c h for a check of but it could be a surety and i like to reserve my time and then i think we'll give you four minutes per bottle that would be fine ok bank they've had nearly two years of discovery and we've produced a fairly lengthy record which we contend is devoid of any record evidence that flag star violated its disclosure agreement with the plaintiffs in any of the three ways that are being remember is i'm sorry just to make sure i get your theory of your the fact of date for the business day in which their process that's the day five star receives it's the day that the federal reserve tells us to process them and this was the point i was going to make if you look at the very beginning of our disclosure agreement we say everything in the agreement is subject to our payment processing rules which are those natural processing rules issued by the national automated clearing house association those rules and they're attached submission at the record evidence at seventy nine dash five those rules very specifically lay out what the effective date is and it's very clear that the bank never sets that date the day and they disprove the idea the effective date could be the day of the merchant transaction absolutely your honor because it is proved that it would be the date of the merchant sansa stuff the fed exactly your honor because we can't do anything until we actually get it from the fed and the fed can actually process it in till it's received from the merchant it so the fear in this particular case on the record evidence is clear and it's undisputed that the fed actually transmitted these files late on sunday evening at nine pm and again on monday morning at three thirty am and  verite her affidavit that that is exactly when those files were received by us there is no record evidence to suggest that we did not receive those files and those states are processed for the sunday night or for the business at their processed on the monday which which is that tail end of our agreement which says for the business day on which they are processed i'm so they will be processed and that monday but the fed is the one that tells us the fed also told us in the a c h file that they sent us what the effective date was and so we biggest or just put in there use this against a bank account and that is a very good question your honor and so if you look at the record at sixty two das eleven we submitted a file that was uploaded by the federal reserve to our system which is the a c h file that we received from the federal reserve on that sunday night and on that monday morning and if you can see in the file these transactions are just provided to us and random order of merchant and so the merchant sense of it's transactions that were conducted for that merchant not just the plaintiff but every single person who conducted a transaction will receive their received in batch and so we process them in the order that they are actually presented of them all while so everything that comes from kmart the ones that are for his good for your client go into that file and all the rest of them go into somebody else's file buy i would assume that that's the case bigger are just to be clear there's no record evidence on that in part because it's not really relevant for what i understand but just physically you know when we think about how this happens the merchants upload them in batches for all all customers the fed then sends you the ones for this particular account now if i understand your adversary the two points that he seems to make that would be contradictory or at least raise confusion would be number one he seemed to say in answer to my question the bank knew about all this stuff before it ever got it from the fed and secondly he says that some employees said oh yeah we reorder them to low what do you have to say about were there's no record evidence of the testimony from the employee who says we ordered them from high to low and dad record evidence is just making that up are you his plaintiff may have had that conversation but it's not anywhere in our record and i will see what yeah but what i was is in the record is that we have not only the policy that shows how we ordered the transactions now which is not from high to low but in the order they occur in the federal reserve file that is in our record in addition to that we've got the affidavit and we've got two depositions that have been taken of our first vice president and retail in commercials operating directors you didn't you're not answering my question about his statement that you had all this information before you ever got it from the fed which might at least undermine the notion of what is an effective date or what is the data processing we don't have all of this information before we get it from the fed and the record shows that what he's referring to are the online banking display screens and if you look at the record he checked those online banking display screens on march second which again is what march second is the day after which we got today we're talking to the monday yes yes and so that is when we would have had notice obviously because we receive the file on the sunday night march first and early monday morning but then he says that those screens on the monday are different from the order in which you say you have the file in the record from the for correct the on line band banking display screens the record evidence shows they are not evidence of how we process the actual transactions there are screens and there you can check it in it's for the customer's understanding of what's coming through and when but the evidence as to when we actually process the transactions the record evidence shows are the actual bank statements that the customer receives and when you look at the actual bank statements that the customer received here they are processed those transactions that he's challenging in the exact same order that they appear in the a recently this is another way i think of asking this question you know when i heard this was an insufficient funds case fee case i smiled and thought i can't wait because this whole thing really i give a it's me and you guys own me a lot of money i really don't like these things but the loss the loss we have to apply in a principled way but i do this question on behalf of i think three hundred twenty million people why would you not when you get the balance reorder within the ba everybody knows the average consumer tries to you know they're struggling that they're trying to do this in order i don't wonder i can understand why the merchant doing it a day later you can account for that i totally get that but i don't understand why when you get a batch you can't figure out very quickly the sequencing the consumer used in honor of that sequencing that just seems like gamesmanship because we're never provided the actual date on which the customer initiated the transaction shows that flags are never gets that information hadn't get that information that i do not know your honor i do not know i would contend that's not necessarily the issue before us but i think yours the other reason why we can't necessarily do that what we do do according to our own internal rules is process deposits first so we make sure that those deposits come in first so that any that the bank account is supplement it as fully as possible deposits are coming from the fed they're coming from yourself right well no we get we get to your advantage that rest you in fact did hide a lower you stopped doing that and now you say you just do it randomly but that would mean that you do have for me well you know you have the information by amount that is that doesn't mean that you had the information by date of transaction but if you wanted to be nice at one time you had enough information to reorder them hide a low if you wanted to be nice you could reorder them load  do best equals most which again i would contend that relevant here because that title a transaction processing is not at issue we get it we have to follow the contract and do that i suppose that even though in days of computers it just requires some programming time what you do now according to your argument is you just take it from the fed and you do it you don't have to massage it you don't have to process it in any way obviously you can do it because you used to do it  programmers could do it but then you'd have a new program and the programmers would have to kluge it every time something went wrong well and we would we would also be inputting our own subjective judgement into the process where it's now we have a pretty dollars out but but we will business we don't necessarily know the order in which these transactions are processed right i know but it's just the most consumer friendly thing to do but anyway the contract is with the contract is yes yes s in their brief that case particularly examined when and whether a party intended to discharge a particular debt and affidavits were submitted in support of that particular date of discharge and judge tyler you and judge gibbons and judge rogers in that case collectively ruled that an off and affidavit offered in opposition to summary judgment shall be made on personal knowledge shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated there and and then the panel promptly excluded the statements by the affiance rift because they reflected practices of other companies were based upon simple belief and they didn't really demonstrate personal knowledge and we would contend that the two affidavit that have been submitted here by the plaintiffs so called experts are exactly like those that were submitted in alper and if you actually take a close look at them the first twenty paragraphs talk about a lot of experience but no experience with processing bank transactions and then both affianced talk about what generalized unspecified merchants might do and because those merchants may or may not actually submit their transactions or their incentivized for profit purpose right to submit their transactions assoon as possible that necessarily means that flag star's file that it received from the a c age is somehow manipulated or  doctored all of that is not based on any record evidence it's not based on any flag star data it's not based on any flexcar testimony it's not based on anybody testifying from the federal reserve will note that plaintiff had two years to conduct discovery and never once contacted the federal reserve to try to determine whether their file matched what was uploaded into our system they never once contacted any one of the federal reserve to actually provide testimony about exactly how the process works and how we receive these particular files so these affidavits are really lacking in anything other than speculation and conjecture about what flag stardust it's not even based on what the actual merchants did in this particular case discovery or additional facts and we would argue two years was ample time to actually conduct discovery and we would test we would note that the actual underlying magistrate order that he referred to which granted some discovery it granted some limited discovery but it did not grant any broader discovery and nothing was limiting the plaintiff from actually being able to get this additional discovery that they wanted and in fact we've produced more than a thousand pages of information so my time is almost up i would remind the court that the standard while on summary judgment is looking at the facts favorable in light of the plaintiff and there's also a burden once you have a motion for summary judgment to actually consider whether there are genuine issues of material fact and we would contend that this record shows that there's really no genuine issue of material fact in this case and so we'd ask that you affirm the lower court ruling all right thank you thank you  asked exactly the right question the fact of the matter is counsel made a representation which is inaccurate my client didn't look monday he looked every single day which is how he got the screen shots to find out what his balances like you had said at the very beginning you want to minimize your n s l s so he was checking the balance so as he's doing more transactions they had sufficient money he made a mistake on the last one their policy their my client went to the bank complained at the then they reduced it by five by three but here's what happened but here's what happened judge because they kick those merchant transactions resulted in a penalty because you know when you make a payment and then it's n s f then you get hit again so neither they get hit thirty six dollars by eight then they get hit by the merchant as well they presented in a affidavit there's based on hearsay we want to get to the federal reserve but we didn't take the dep yet discovery wasn't close account counsel i mean i think all of us here get the equities of your position and i'm going to guess we are side with the equities your position you still have to come to grips with this language and i don't i just have not heard you yet presented theory of that language that adds up so you don't have to use your time that way but i'm just telling you that's the way to convince at least one member of the panel is to deal with the language of the contract explain how that lines up with the equities the because the if you read the rest of the language it said that they can change it that they don't have to follow it i have it in my reply brief they don't have to follow or does it say  that they will be no leak and very such rules and all but then you have a citation of of what your not from your page number but from what you're reading from in terms of where it is in the record it's it's in the agreement it's in the  at thirty four eighty six or you know i'm not sure that all right will look it up but we want to get some discovery on the federal reserve once we've got a give us a firy of the on the words of the contract and what they mean and why you need more discovery that's eat it if you think about rule fifty six just like and do much good but they made representation as to you which the court accepted as fact that they process it according to the federal reserve right there's no evidence to that there's an affidavit or that's a good point so in other words the idea that they get this batch from the federal reserve if you think that's not supporting the record ok we'll look for that and our affidavit from our expert our banking expert said that cannot be so the judge is supposed to give the facts in the light moves favorable to be just to be clear m r they seem to say that in the record with an affidavit from their person at least this is the file that we got from the fed is that correct yes your honor and if we look at the record we will see this file which is the way they processed it which they say is what they got from the you know what you'll see is what they prepared not the original that was brought from the federal reserve which we've asked them for show us what you got from the federal reserve but what do you mean the original in other words is what they want that's what their affidavit says we got this from the fifth that's what they say but you want to look at the underlying saying is we don't believe it when you ask for a computer file for example when ever they use in defense of their position that they said to you this is how we do it this is how we get it we don't have the original i think i think we get your point i'm sorry i apologize i told my client i wouldn't be emotional i didn't mean to be it just said some representation for me is not accurate i would respectfully ask the court to look i was more emotional than you were if they don't worry about it all right thank you for your briefs we appreciate it thank you for answering our questions and for your oral arguments we do appreciate the tolerance and forbearance you've given us that thank you the case will be submitted and the  call the next case