yes your honor good afternoon this is part of the charter and i speak for the trustee appellant u s bank national association before i get started i feel that i need to disclose to the corps a change in circumstances a law that occurred literally in the last hour or so before i'm speaking right now during the course of this morning's arguments which is that the appellate division st department  issued an order affirming the decision of the lower court with regard to the evidence sherry hearing that was held with respect to the as stabilized as is appraisal reports  has managed to bring to a head like the sort of the big question though to my argument which is this whether or not the appraisals were as is as they say on their face or as stabilized as the bronx supreme court found and the appellate division has just affirmed based on the evidence you're hearing the fact remains that the loan matured in march twenty seven thousand and the there is a giant principle payment that hasn't been made for several years now the the plaintiffs after having obtained a favorable ruling that has just been affirmed today move for summary judgment based on the bronx supreme court's finding and the fact is that the bronx supreme court judgment on their claims is still an open question to be litigated in the bronx supreme court in the fullness of time so that that's why i said that this doesn't actually change our position but the reality is that when the parties brief the issue this appeal was out there but our this our position doesn't depend on the st apartment's ruling with respect to this issue and the fact of there being a breach is simply that we haven't been paid it's true that during the during several years many years actually since the filing of the litigation brought supreme court there was a series of injunctions and each of these injunctions prevented us from declaring an event of default so we had to hold off on the current event and the plaintiff didn't make any a loan service payments they didn't and then they didn't pay the principal payment at the time of maturity but the fact that the appraisals maced on the opportunity to accelerate the mortgage payment you know because they submitted the appropriate appraisals and you reached the agreement by that the question of whether we breached by failing to accept these appraisal reports that are on their face say as is when they're supposed to say i stabilized is a separate question of whether we're entitled to the now that you're entitled to the payment there litigation position is that we are entitled to the payment that was tendered back at two thousand and fourteen without any interest since that time without anything else and that is one of the issues well what should happen in two thousand and fourteen was here's your money and you said no why should you get interest between two thousand and fourteen and now rather than just be told you should have accepted this back then so if you want to take it now take it i understand that they're not entitled to never pay you anything but it sounds to me like this is something where unless you plan to seek further review in the new york court of appeals seems fairly ripe for st settlement well your honor whether i can certainly can't speak to what settlement discussions may take place the light of this ruling i also   whatever time you have to decide whether to go the court of appeals and if you decide that that's a good thing to do to go and do it but one of the things that troubles me about this this case is you know am very receptive to your argument frankly the district court here did not really do the the work that we've generally required be done in deciding where the colorado river  is appropriate on the other hand it seems to me that the more the case in the state court proceeds the more ridiculous it starts to seem that we should be here trying to every litigate all the issues that you know maybe there's some argument for that when the state court litigation seems to be dead in the water and nothing's happening but that seems to be progressing to a resolution that again at least if there is not go further appeal and maybe there will be resolves the principal issue that divides the parties and why i don't know why you would just go back to the state court and either litigated or settle it  it seems like a rather strange thing to be asking our district court to now take over the litigation or proceed on issues that are largely resolved  urgently is the receiver issue obviously with the horrendous coronavirus situation that's going on and everything else by the value of commercial property is particular properties that have retail and so on is very much a the real property the personal property and so on for many years and we have a need to protect ourselves that is heightened under the current circumstance now it happens to be the case and i don't want to place too much reliance on this because i know how appealing it is to do so got a change of circumstances so we don't think your station stay in place and that and and we go for and we we would like your litigation and there's nothing to prevent the court hasn't hasn't hasn't dismissed that case pending final judgment in the sea court action so right now as i read judge muros order which is on appeal before this court we are state and we can't go back to him and seek a receipt the appointment of a receiver if the court  being determinant in the state court proceeding this appellate division ruling judge walker there is no chance that you're confused i'm just being an ineffective advocate if i didn't get this across it is not a final determination the  reality is that this evidence you're hearing which was on this as stabilized as appraised issue was just one of the several issues that are outstanding in that case and the supreme court's denial of summary judgment even when you know based on this ruling  affirmatives is only a result of one of the factual issues in the case and there are others but that being said right now you know i've already discussed the receivership know noted that the district didn't go through the factors for colorado river abstention and the problem with this decision is that we have no idea if and when the plaintiff will be in a position actually to pay us off even even let's say that we lose across the board at some point whether it's in the new york court of appeals or the bronx supreme court or whatever we lose lose lose and there's a judgment against us where we have to accept thirty one million dollars even then if the plaintiffs isn't ready willing and able to provide the money at that juncture we end up holding the bag for this enormous unpaid loan amount and that can't be right either when the st department ruled that we were we immediately acted to seek to vindicate our rights because we had this enormous loan outstanding that is true and it cannot be the law that we cannot simply cannot get any pay we have no entitlement to be and romance judge maarouf for the proceedings we are what i was about to say is and it may be so obvious that it was a waste of your time but you don't want to say anything about his analysis on colorado river well i assume you would have to have some basis for vacating as order yes we would like you to say that none of the colorado river factors don't favor the stay so why should we say that i mean we we have said repeatedly that we're not the ones who have the discretion to decide these factors and we shouldn't be doing that in the st instance i would think the the logical thing to do here would be to send it back to judge mero because he didn't do all of that and ask him to proceed at such cases he thinks is appropriate in light of the equities of the case and his caseload and whatever else is going on in the district court to new address the colorado abstention factors appropriately and then we're back you're back there and you deal with that and see what happens then my apologies as well as i have to answer that number one you know i just want to sort of remind the court of my argument in my brief about f d i c which is just pullers  that no one factor is dispositive under colorado river in every case there's not an automatic who gets dressed action over the race moreover it seems to me it's unclear who has jurisdiction over the race  the extent that the state court has been at least asked to appoint a receiver and take over the property and that have been before the federal court had jurisdiction it's a rather complicated business to to figure out what any of these for how of these factors apply a little on all of them when your principal point on appeal is that the district court over simplified and didn't go through the work that it needed to go through you're absolutely right i means to take jurisdiction and when to effect its jurisdiction the court must take the property like a foreclosure as opposed to something like a receivership which is ancillary to the memory remedy etc and also obviously we failed or my predecessor counsel failed it was years before followed that the factors weren't properly weighed that if if the record had been made more clear by for example putting the complaint on the underlying action before the court and other you know maybe a full blown briefing then then that certainly i would not be only here today d because they wouldn't accept mr mister i just want to make sure i understand your position you say your position is not that because they refused to tender you get to keep the money the refusal on the lender and so just in terms of you know i'm not trying to settle the case right here and of course there would be there probably are negotiations and i'm not inquiring into what those here at least at this moment as far as you're concerned at least thirty one million dollars they could take and be done with this problem at correct one and just so i understand we'll just understand because this goes to the question of the urgency of how vital it is for us to get the federal court back into this game and you know tell the k to judge mero how the colorado river inquiry should go and cetera  it may not be as urgent as all that if they're prepared to negotiate but they they make their own decisions about this i just want to make sure that you're not maintaining that they're not entitled anymore to the thirty one million dollars adversary mention which confirms that the amount that was tendered was calculated in compliance with the loan modification agreement so we now know that the amount that was was given on june th the two dozen fourteen with the correct amount and the only question is what is paid today they maintain obviously they that there's all types of other interest a rd title to a default fees we obviously maintain since it was their mistake that they're not entitled to any of that and that's something that the state court  borrower so what the court said is go take some discovery on this issue on these narrow this narrow period leading up to the payoff date and then and then come back and i think that will be done research subpoenas and and have not been for the coronavirus we can't have it both ways where they say that the mere request for relief as they go to the district court invokes in ram jurisdiction in the district court but that the request for interim relief mistake or doesn't invoke  they could today ask for a conference with the court and that would then in no way violate the the restrictions are placed on filings in the state court system today i would like to to address  the court the lower court manifest sufficient regard for the the the the federal courts obligation to hear cases and that the court needs with sufficient an ability to conduct a meaningful and power review and i would point out that in the cases in which this court has found the district courts analysis to be insufficient under been this court's opinion and it is it's to consists of exactly one sentence and it says in due with the fact that the summary judgment motion is now right for decision it is appropriate for the online obviously we've got a far more thorough decision from judge marilyn here in the adventure case the two thousand and sixteen case again before this court there was no mention at all of the presumption in favor of exercising jurisdiction and in the so in all of those cases the problem with the the lower court's reasoning was this court could not assured self that the district court did not mistakenly apply the law and that the district court did not fail consideration to the presumption in favor of jurisdiction in colorado river and that is not the case here in this instance judge morrow acknowledged that the colorado river applies in exceptional go ahead i'd like to just i just have one question i notice that the judge in his just before he before has to create a paragraph stated that upon the state courts resolution for him summary judgment  court will assess whether formal abstention is warranted or he's just trying to put a stay on everything from the time being and he is prepared presumably to go back and revisit all of the extensions quite criteria said that he has considered in light considered the question of light in state courts ruling and substantially for the reasons previously articulate your lated he formally exercised tolerate of or colorado river abstention so yeah i think because of competing affidavits regarding the two week period before the july th two thousand and fourteen payoff and so it sent to the parties to do very limited discovery on that narrow period of pine and then come back to the questions of the case could be resolved if it is that what he meant by the state courts resolution of the summary judgment motion that hasn't been quite dissolved yet because of the two weeks you said upon the state courts resolution of  i'm trying to go back on my laptop now to look at the notice of appeal but if i put the appeal from to us that we are now arguing is based on that original not that's my understanding although i would have to do the same which is to try to find the notice of appeal actually yes it is from the decision in order entered on i just wanted to follow up on judge walker's point the fact the judge mero issued this initial ruling saying i'm going to hold off on deciding colorado river until the summary judgment motion comes down is actually quite important here to be clear appendix the initial determination though implied that he felt that the summary judgment determination would inform the colorado river analysis so when the court denied a summary judgment a plaintiff was predicated on the evidence you're hearing analysis it granted the motion for summary judgment by the servicers got out of the case it denied our motion for determination of interest and then there were certain other issues that were denied they left the case the coronavirus conferences it's my understanding that it's possible for judges to ask for conferences i do not believe and i have my no expert on this but i do not believe that i am permitted to seek a conference from the state court under certain  circumstances because of the non essential filings bar but the receivership issue really does turn on you know the fact that right now we have had months and months before the corona virus outbreak where the supreme court did not hold conferences despite letters from plaintiffs requesting conferences there has been no real substantial progress on discovery for five years in the state court and i don't mean to disparage anyone all i'm trying to say this day is pretty much irrelevant to our discussion of colorado river abstention is not correct not exactly your honor and i don't mean to be difficult it's just that one of the colorado river factors surprise that state of new york doesn't give you protection of your right we are asking for a much narrow ruling down that your honor i realize a repellent it is for me to say it that way but what i would say and the failure to proceed and the repeated need to get vacant years of these repeated injunctions you know we formed the view that we should have a large cells of diversity jurisdiction in these circumstances and we don't think that there's anything wrong with doing that receivership you know these are all factors that we think way strongly in favor of the court exercising its discretion not to stay under colorado river you know obviously of colorado rivers abuse of discretion there is a slightly more rigorous one because of the courts on