he has no objection we'll well treated as a motion and then we'll enter an order accordingly but it's off balance for the or as we m b any was merged into bank from america in two thousand and five years or all heard and so that was a merger and there's no there's no indication that there's any purchase from bank of whatsoever that that self the second is whether or not the other has a credit card in uses a credit card then b n a he denies it but for the purposes of this argument it doesn't really matter whether or not he has credit card  song very many let me ask you this if he didn't have an account would you agree that that would be something that he would accept a challenge within three months or not were to agree with that first issue and green man did do we need to address the counterclaims and all those other issues that you raise in your party i don't believe we need to address any of the other issues your honor i believe that the way the state of the raptor is if your honor if so we don't have to address the second for arbitration not if we we come to this issue and come to a resolution of this issue and with respect to the kind of claim when it comes back down we can really raise i believe we can reopen that issue we're going to decide yes this that i would spend time you would like but i don't think so when we look at that agreement that agreement that was was attached with without any effort david remember there's nothing from m b n a or bank of america it's keeper of the records there's nothing that says this is from the files there's nothing that says it's kept in the ordinary course of business by m b n a or bank of america or whoever does their work for them there's nothing that says that this was said to mr rudd mr cuyler at any time or that this was sent as part of a mass meeting to wall of all their points anything that would qualify this is as a business records exception what it is is a tax generic copy of some agreement there's no reason for us to think that this is five years and when we look at the twelve pages of additional problems and conditions we see that he just wanted to which are together and ages three and four have down at the very bottom of them a number of documents which are in front of us whether they're in the record or not but are there in front of us of statements that came in pursuant to pursue it to the subpoena and no show that tyler was in good standing in two thousand and two when throughout two thousand and two as a matter of fact here's one from january of two thousand and three and that's a problem when you when you start now quoting the record to show that he's in good standing when earlier he said nothing existed between the to contest at well you know into somewhat of the above bootstrap for the arbitration i mean i i don't mean to be demeaning but you wouldn't be there unless they thought you had an arbitration clause and they're not there to really question whether that arbitration clause is binding on the parties there simply want to show us that arbitration clause will go forward so when you say they found a binding arbitration clause it's somewhat put it in the record and did they have a document with both your client that and d n a here for the former client or the former party and the credit card holder be an issue for the circuit court to address and not be found by whatever statement is in the arbitration record fresh start position that you can that contest let's assume for purposes of the argument that this case but there is no wire ration agreement whatsoever but someone gets involved and ends up before the arbitration clause that exist it should be binding on the part well so it's not a question of the not existence it's a question of whether it should it should find find out now every i get even if even if there is a plausible argument to be made that it didn't exist i mean that that was pretty much rejected by the seventh circuit because it's it's right there in the end for everyone to look at so it's not this clause and there's no dispute that there is something in the record but there's nothing in the record that has that connects that clause it's in the record with the contract between ambien and mr tyler i think that's a position the position was a reza supported by that are being presented and it wasn't until someone decided to challenge those documents that the underlying basis for those documents was revealed to be  and so when you're relying on a contract between the parties and their claim is that private facia case must feet must include a binding arbitration clause i don't know for sure but we still go to court you still have that fallback position of going to court and proving up your case you just can't do it in the context of an arbitration proceeding when there is no binding  taking involved here and the question is whether that risk was was is was a good risk and that's the problem because it doesn't take a whole lot for you know for you to and the question is when did that when did those conditions are right to the rise before he used the car the second time use the car the tenth time use the car if we don't know when that condition arise why should we give you the benefit of the doubt when you have the documents to sort of explains why we're in this position now because when the arbitration proceeding began he did have an attorney he has an attorney now and then it truly is bound to look for the d i don't see yes he had that letter cashed out any any notion that he had that there was an arbitration agreement in place that letter says yes i owe you money but not as much as you want but it doesn't really get to the question of whether there was an arbitration if he doesn't protest i have trouble accepting this idea now that he doesn't even have to read it believe me i mean that's you know i think it's hard to accept any sincerity in that claim that you don't have a credit know i mean he's just basically saying you know i know i owe you money i do this but i don't see how we get past the general notion that if there is no actual arbitration agreement that this is something that  really is the outrageous position in the first place to do this and the rest of the let's say that let's say that that's all true that the arbitrator can make that decision but in order to determine whether the it's not like it could be disputed no one is contending you can be disputed and in fact it but we're talking prime official case if he doesn't present any evidence to the contrary then you would automatically but it it in order for you to establish the validity of your work arbitration award there should be certain minimum minimal requirements met and it seems to me if that would be on going back to the forfeiture i mean going back to the the mortgage forfeiture cases i mean a lot of whom preceded until the problem came to light so why don't we avoid that problem the arbitrator didn't decide some of these issues and he said that the claim was properly served on responding in accordance with the rules he concluded that the parties entered into a written agreement arbitrate the six states particular date he says no party has asserted that the agreement is invalid or unforeseeable the matter is are bridgeable under the terms of the parties agreement i mean these are generally things that we would not go into and that the trial court would not go into unless you alleged some sort of thought normally that's i mean there are the grounds that the court can consider and there laid out in numerous cases so this arbitrator actually according to his award included these things have to response to that which i had three because you're supposed to do things in threes but i have to one is that if we look at m c i the first  circuit court of appeals case we see in m c i they specifically say listen we're not dealing with uniform arbitration act here we're dealing with the federal arbitration and there's a difference between  and they specifically say that the respondent there the defendant there was absolutely right in what it did which was sitting and doing nothing because when it and did nothing and argue there was no agreement and there was no agreement at least there was no prima was ever proved although m c i had never knew there was no agreement was ever proved they could come in later and challenge it it didn't matter whether not was that was it was a different issue and so the m c i court specifically said well you know you people or everybody who's in this situation should not go to arbitration because if they go to arbitration and if they arbitrate then the arbitrator makes a decision and you're stuck and so you're a lot better off sit back pending on how you feel about arbitration versus the courts and way now the second thing i have to say has to do with th off and the national arbitration form as we know when out of business very suddenly when the attorney general of the state of minnesota went after them they went out of business four days later and they no longer do any consumer arbitration nor does anybody else right the only study we've ever seen from the and a off that came out was in california which studied eighteen thousand and seventy five cases from january first two thousand and two through march thirty first this a little story but it's not too long is there was something out there called the national arbitration council and the national arbitration council it just came out of somebody who hated that he just formed this thing and would send off letters to that came out against city or over one of the wards they came out against chase and he sent off a notice after they filed their operation with him and there they would be in under the uniform my tradition act it was some problems with that because a and this is a fought and nothing doing whatsoever we don't we don't even have to look at uniform arbitration act and ultimately a federal district court or in joined in join this guy from thousand and six well i would say in closing there needs to be a contract there is no contract to