mr yellow you may begin when you're ready violated broke promises in conditions in its own loan documents violated florida usury law and basically defied all the reasonable expectations that any borrower has including mr donne waivers and releases in the contracts there certainly were and the court considered itself powerless to do anything in the faces of those releases and waivers by all those waivers and releases usury for decades has understood that there is only two ways to purge usury one is a transaction involving involving a bona fide purchaser for value under six six eighty seven point zero for that subsection one and then in subsection two if there's a complete abandonment of the usury and a giving back of the interest are statute says that is how does not get any due process otherwise the statute is being violated there's a non circumvention rule in the statute it says there shall be no direct or indirect contract or law that applies is not nevada it is true that nevada doesn't have a usury law but that is not the basis for the war to who sure yes sir and so has anyone but it's public policy against usury is not strong as it oh i certainly agree and woodward allowed parties the contract the way the statutory protections as long as there is a normal relation between the transaction and the choice that's made in the choice a lot of laws otherwise you are going to set a policy that this is what it's going to risk the courts unfamiliar with another state's law and how it's being developed are going to be asked to make decisions on a regular basis on arbitrary choice or walk clauses lenders will completely circumvent the usury law with florida borrowers in florida transactions a florida can arbitrarily select the vatican and say it doesn't apply let's meet florida law applies there is no strong public policy to the extent that it can be waived in court back to the release and waiver argument your honor no positive law statute rule or regulation suggests that lenders can waive usury and loan documents it's exactly the contrary we have cases about the usury savings clause where the florida supreme court said no no no you are not going to destroy a usury claim just because you have a usury savings clause we have the non circumvention rule we have the cases we have the public policy what is the waive usury they have no such case they have three cases they cited gun is their big one that's a florida supreme court case but in all the cases they cited what is happening is that a borrower is giving up in litigation and if you look at gun v plumbing and you look at the two citations in there and i did that as i was preparing for this oral argument one of them is mackay v thompson and that's where the court used the language it's a personal defense it can be waived when you go to make a v thompson that case is one where the bar was relying upon indiana law in a florida court and the court of appeals said that doesn't work you didn't plead specifically enough so it's a pleading principle when the court says and go in the plumbing you can waive usury it's not and all universal all in compas in principle that justifies a constructors of florida it's cited as the basis for why the petition for writ assertion or it was considered and specifically what the court said there's no conflict please look at the facts in the coral gables first national case because what happened in that case was the lender had a usury a sloan and then they went ahead and did a renewal note and they had a release with the renewal notice and the supreme court in that case said that's not sufficient to damage the usury or they're still use reclaim they don't specifically say what i'm saying is a novel question under florida law they don't say releases can ever be used to loan documents what is the jernigan had it on the shelf i want to point out to two things here number one on the first credit agreement there's absolutely no connection none at all to nevada and one thing that they tell you is that nevada law or florida law do you agree with that yeah it's because it doesn't with respect to the non user reclaims because the law over these jurisdictions are relatively equal the court still got the result wrong which will be six juncture i mean i'll talk about the good faith your point is or your your argument is that you should win under either nevada law or florida law it makes no difference not with i'm not making that argument on the us understand your honor you're right you're correct i'm not sure i agree with that and and i think i'm here to answer any questions the court has and we've addressed all of this in the briefs i think that perhaps it does make a difference  with respect to the release and waiver claims that it seems to me at least under florida law because you all pled damages you have a problem and under nevada law i'm not sure whether you have a the of the of the jackson case yes the eleventh circuit case and in that case there was a general release and in this case there was a general release but the general releases don't operate in the future they in the situation that the court was faced with the dracs and it said the general release cleans everything out because it came at the end of the case it was a discrimination case where people were suing for employment discrimination they were not permitted to take the benefits of the settlement and then say we still have a claim from the past first credit agreement when it's executed nothing's happened yet the problems happened after the first credit agreement it's and you still have similar language in the later agreements and in the second the second credit agreement it doesn't have anything to do with the first credit agreement they have not borne up to any analysis of the language in the second credit agreement the definitional loan documents they moved it together in their brief the loan documents pertain to the second credit agreement not the first credit agreement the claims with respect to the second degree credit agreement they occurred after the second agreement second credit agreement was executed hold  xeni is one of many cases in florida that say a release does not operate in the future unless it says so those release provisions don't operate in the future in addition to that all of those released provisions are conditioned on the on the performance of the covenants and the promises in the agreement this is not unconditional absolute extinguishment of your claims this provision it's conditioned on their performing their covenants this lenders predatory it didn't perform any covenant and all of the claim should be preserved certainly usury claim certainly the good faith claim but every other claim as well and i'd like and the place of incorporation it seems to me this complete diversity between the plaintiffs and defendants in this case i think you challenge that we we thought there was complete diversity and we were put back on our heels when the defendant pointed out your allegations aren't good enough because these partnerships that we sued have hundreds of partners and it's like a bush good ol you've got to open up each partnership to find out where their partners are from so there was a concession we didn't plead diversity well enough i see that i've had my my main argument is there anything else the court wants to hear from me about right now thank you thank you mr yellow here for m eleventh circuit precedent the need to secrecy jand they didn't do that and as the jackson case plainly said a plaintiff appellant can't have it both ways they can't accept the benefits of transactions in this case nearly eight million dollars in loans c a gave and then seek to avoid that same document over here that windfall is not permitted under the law in the state of florida and that is exactly what the planes the pallets are trying to do in this case in fact what they're doing is exactly what the u s supreme court admonished in the park avenue case which cited gun palming with approval where in this is a case about a defaulted debtor that is doing nothing more than delaying collection of this particular proceeding and it's important to note here that this is nearly eight million dollars that money has not been paid back by the plaintiffs they signed clear on equivocal waivers releases ratifications affirmations in the various credit agreements in this case it is not necessary for the court to reach the choice of law issue to decide this case as the district court decided below under either florida law or under divided law a waiver and release isn't forcible to waive and it stop a party from bringing claims or defenses that includes claims of offenses that in encompass usury fraud or civil rico in this case let me yeah the district court there found that that claim was not waived and but it dismissed it on the grounds that it didn't state a claim for relief but i'm not sure that the district corps addressed the argument that there was at the covenant of good faith to apply in determining whether or not to grant or deny requests for advances and so even though the defendants had the sole and absolute discretion to grants or deny their requests didn't they have didn't they have under the they didn't have to they could in bad faith decide not to grant a request it's not a question of good faith or bad faith the provisions regarding the increases in credit line or up to the sole absolute discretion lender and that discretion may be granted or withheld it's stated in the credit agreement and that was clearly communicated to the borrower but it's a case but doesn't it nevertheless have an obligation to d determined whether to grant or to neither quests while applying good faith in other words it couldn't have entered into this contract saying that it had the sole discretion sole and absolute discretion to grants or deny these request knowing that it never intended under any circumstances to grant the requests could it no but that's not the case here ok so so then you agree with me that there was an obligation to exercise the its discretion in good faith it's not stated that way under the agreements your honor of the way it stay doesn't have to be stated i mean either either they could have entered into the agreements saying that it was their sole and absolute discretion whether to grant or deny these requests intending never to grant any of them under any circumstances in which case and guess it's your position that there was no requirement of good faith or if there was a requirement of good faith then they could not have done so what is your position on that or stated other way around it there's no provision in a the agreement to say consent shall not be unreasonably withheld which would imply a covenant of good faith and third dealing that is not these agreements what is in these a commune answer my question i am your honor could they could they have could they have decided that they were never going to grant any of these requests before they entered into this contract would that have been ok would not why not because the way that the agreement is drafted they list specific correct was a conditions proceeding that have to be fulfilled in order for the lender to consider a request for an increase in credit and none of those provisions are conditions proceedings were satisfied in this claes they were not pled to have been satisfied in this case and judge on garro in considering count three specifically said that she scoured the record look at the complaint and all post rather now the release would not release post release conduct you agree with that i believe that judge ongaro the way that she interpreted it was that it only would release you know pre you know you know pas conduct not future conduct but there as there are cases that do stand for the proposition that future conduct can be waived but that's not the ambition machine conduct to prevent refinancing of the second could it agreement will be post along release content that would but in this case are honor all the conduct that occurred that was subject to the release and waiver provisions occurred prior to december thirty first two thousand and fourteen but how could you prevent refinancing of the agreement three conduct it would have to be post conduct well number one there is no obligation on the part of the cia to refinance anything it's in their sole and absolute discretion and in this case they did provide additional financing on the first loan twice they gave initial loan of two point two five million increase it two million in the first amendment and increases another half a million in the second amendment to the first credit agreement they had no obligation to do it but they did do that in address it's not before the court because they waive their right to present it so they never they never asserted diversity jurisdiction basis in this case outside the record i would profit of the court that complete diversity did case they were the facts that is correct your honor however that's not that was not the determinative issue that the forest green court found they enforce the waiver of usury as to whether it could be waived were not and the court said that it could be waived and a party would be a stop from asserting that as a defense in a case under the facts of the gum palming case those facts in the releases that were cited are very similar to the releases in this case and we believe there's there's no difference just as judge and borrow found as to the procedural posture whether it's now or whether it's in litigation if you can waive and release a claim for usury in litigation there's no difference as to whether you can do that before and in fact  usury claim usury a cruise at the time that the agreement is signed so the court only has to look at the four corners of the agreement to assess the usury issue and in this case there's a choice of law provision so here our position is you don't need to even analyze the choice of law provision because under florida law it's waived under gum plumbing under park avenue and other cases but if a court order look at the choice of law provision that choice of law there's a presumption of validation and in this case that choice of law prevention is presumed to be valid that this is not a normal relation would you agree with that i disagree with that what how many times before had these parties divide a law well  in nevada dca is a grand cayman partnership this is an international transaction this is not a florida entity it designated nevada law to control the disposition of this particular transaction it also carbon which is the other bar in this case is a shareholder veered as well now i don't want to have the burden tipped it to to us since the burden is on the plaintiff to be able to properly plead an invalidation of what would otherwise be presumed to be a valid choice of law provision judge and borrow found that they failed to meet that burden they did not meet that burden in this case because there was enough record evidence to indicate a normal relation to the state of nevada with the veritas facts  either one the waiver would be valid enforceable this is a twelve b six ruling this before you councils talking about there being a normal relation the only thing to measure than normal relation with the allegations in the complaint there was an evidentiary hearing conducted as is expected under the case law when someone raises that there's not a normal relation the normal relation test is this law that was picked nevada law does it have a connection to these transactions you just heard council say they are not nevada and to date they don't have their business there all of the people of the other side of the transaction were dot residents of nevada the only thing that they can show is that variety this which had its principal place in business of business in texas was insisted by dca to be in this agreement please look at l l l our ability that was a recent case by judge uk he looked for a real connection not a make believe connection in that case specifically the parties picked delaware law because it made sense it's l l c provisions it wasn't just simply we want to get out of florida usury law this lender is routinely violating florida law  usury and how is it doing that it says it's putting all these releases and waivers in their agreements there's not a single case that says they can do that let me turn your attention back to the releases and waivers and for a moment as long as you mention them you your argument in the briefs and here today has been that lots of things happened after after though waivers were intern entail and so they aren't precluded from but it seems to me and having reviewed your complaint that it's not clear some of the things are clear maybe a couple things because they couldn't have happened beforehand but other things i can't tell based on the allegations that are set forth in the complaint when they occurred and it seems that the burden would be on you to plead it clearly to show that the releases and waivers don't apply and i wanted to give you an opportunity to address that we have dates with every allegation in the complaint i know it's a long complaint the case started with other lawyers but the the bottom not is a long complaint but we read through though this that's not the issue the issue is not the length of the complaint the issue is is long as it is did you s allege claims that would plausibly state a cause of action and one of your obligations if your argument is while the release is only released what came before and not after one of it seems to me that one of your obligations is to plead with specificity when the incidents occurred that you're complaining of and what i'm saying is it wasn't clear to me with respect to many of the things that are alleged it's not the length of the complaint that's the problem although maybe for other reasons but not for this reason it's the lack of specificity and so i'm giving you an opportunity to tell me why i should be concerned about that if you look at the background facts at rosenbaum you're going to see that there is a date with everything there's is not something where we're trying to muddy it up and and hide when things happened it's in there when you look there's also a section specifically about the releases in the complaint that explains why they don't apply them now i will acknowledge that in some of the claims there is conduct related to both the first and the second credit agreements our basic argument on the credit agreements though is as follows none of the credit agreements extinguished claims occurring after them the first credit agreement did not extinguish claims about the first credit agreement because the releases applied backwards the second credit agreement didn't extinguish claims having to do with the first credit agreement because it doesn't deal with the first credit agreement we did make the argument about economic compulsion with respect to the amendments but please understand mr charnock and could have paid off this loan they would not lend him they insisted that he that he stay with them and the result was this was due to the fact that they would not release money from the lockbox your honor this is economic  securities i'm trying to answer your question i have is the background facts have specific dates some of the claims so i guess and let me just title up if it's not if i can't find it in the background facts and and let me tell you we look very carefully but i will go back and double check back then you're in agreement with me that it was your obligation to plead it sufficiently to support your allegations and that would in fact then support the district judges dismissal absolutely not with respect to the usery claims and even the just the district judge acknowledged there were claims and there was the good faith claim that came afterward but with respect to the use reclaim what have you heard oh mr donnegan got an eight million dollar loan he doesn't have a usury claim that doesn't understand usury law usury laws a lot of forfeiture also mr jordan again as depicted in his complaint exactly what happened to him millions of dollars of intellectual property millions of dollars a real estate have been put out side his reach and he's not going to get it back because he's been he's had the working capital of his company was destroyed so he's lost millions it's not just simply he got eight million dollars and even if he did under the law of usury that doesn't make a difference because it's a statute of forfeiture and the case that we cited on this was richter jewelry be sure wine hard it specifically says there's no requirement of rescission under florida usury law the panel's been very kind if there are any other questions if not we stand on