scrivener's error in either the maira post amendment to loan agreement or the miami date amendment to loan agreement since those two documents send the sale proceeds from the sale of the eight acre out parcel to be applied to two different loans in that agreement that there is a scrivener's error that creates the ambiguity that we believe the district court erred in not addressing just record never got to that issue because the district court entered summary judgment despite this ambiguity and is despite the issues of material fact that go along with it the court stated that the court believed it should stop at the end or connector issue by stating as follows i cannot however consider this separate argument relating to a separate loan in interpret ing the an ambiguous and determinative term and or contained in the two thousand and meant to loan agreement the problem with that your honour's is that the and or language is not relevant in a circumstance in which the record here clearly indicates that there was enough money from the sale of the eight acre parcel to pay all of the required elements of paragraph three of the marriage amendment a loan agreement so the district court erred not only in its determination of what and or means but also by virtue of not taking the next step in determining whether there was or accepting that there was enough money and therefore applying that fact to what and or means as well as erring in not giving appropriate meaning or distinction to the ambiguity contained within the two amendments to loan agreements which needed to be read together as we argued below your honor let me get into those two issues in greater detail most importantly in our view the order ignores genuine issues of material fact which can only be resolved at trial because of the ambiguity i've addressed between the mare post amendment alone agreement and the miami dade amendment alone agreement as i said the region attorneys as well as his attorneys i'm sorry the region's attorneys who drafted the documents simply made a mistake made a mistake these two amendments are almost identical except for one big problem the m loan agreement states that the miami dade out parcels proceeds go to pay the better posts alone while the miami dade amendments loan agreement amendments a loan agreement states very same proceeds go to pay the miami dade on a different loan both cannot be correct we all know that the exact same money can't go to two different places that is by definition an ambiguity even regions agrees that the scrivener's error in one of the one of the documents and needs it needs to be fact the court refused to address because the court determined that the end or connector was dispositive of this case that it gave them options as to which apply it  it says and or real estate taxes on both loans it does not say and or one of the two loans that's the difference and your honor if i may we can turn to that specific paragraph and we can read it and let me security for the emerald point which is the i mean date mom right so it's only on taxes so the only place that addresses the loan that's going to be paid is in rome and that one word says to reduce the outstanding principal of honor at most that's an ambiguity that needs to be addressed because in our reading of the loan that's defined in that document it's very clear that it's referring to the post alone later in that same paragraph to the extent it another issue which is the promissory note and the release of collateral provision and that you with me certainly yes rights region sells the st lucia loan to the florida partners right yes and when regions does that it releases its interest in the mortgage on the property right the second mortgage on the miami dade property right the second mortgage ok so the out parcel comes from the miami day property right correction of ok so in effect i know we've got these amendments over there we got to read with all of this right if we didn't have these amendments you don't contest because it was like a six three it was a larger loan and they sold it for two point eight to the florida people and released part of the collateral which happens all the time well yes but not not not quite let me just get th i'm not saying where we go from that i'm just saying regent releases part released the collateral right really released in miami day collateral for the st lucia loan and left only the st lucia loan collateral for the st lucia long correct that's correct all right and so regents get this one point three four right for this two point eight million dollars wrecked as a deep discount but that happens all the time you'll have they'll sell off part of the loan that released some of the cattle collaterally so for the st lucia loan for all practical purposes forget about these two amendment is been released and in the promis documents including the promissory note and the loan documents include not only and in fact the promissory note and all the other loan documents are governed by the loan document the loan document was amended by the america amendment to loan document doing so it that provision is a more specific provision and usurps the generalized term that the bank can just release collateral but more importantly and most importantly your honor even if the bank could release collateral that property without merit post his agreement your honor which we may be a fact of getting rid of collateral produce that result yes but there are two points actually that was partially what pretty but what was the regions cannot unilaterally do so and what it because the agreement states that any further amendment of any of the loan documents needs to be agreed to by the two parties and here's the key  between the two properties via the creditor and that and that link was broken not with our agreement the link was broken and not only by the release of the collateral the link was broken by virtue of the agreement regarding cross collateral ization and between the the seller of the loan regions bank and the buyer of the loan not with maira posts as a as a signatory and in that document it specifically states the buyer releases any claim or buyer meaning the buyer of the no george agreement is this there's this is the agreement regarding cross collateral zation and the only parties to that agreement are agreement know it and involves the agreement between regions bank in selling the loan to the buyer of the posa not either borrower we were not parties to that agreement nor will we even had knowledge of that agreement and in that agreement where we're not a party the buyer of the note the buyer of the loans is agreeing to release any claim not only the lien but any claim it may have against the miami dade property the eight are out parcel and when the regions had the buyer agree to do that regions has loan and so that is a unilateral the unilateral right to disconnect the miami dade property from the lot of your honor respectfully they did not they had it that's what the released if i if i agreed but let me let me just explain why i don't think so they may have had the right to release the collateral although even dispute that because we think the mare posed an image alone agreement takes away that right however even if it doesn't what the bank did not have the right to do was change our briefing does that hopefully at some level but happy to help you do that i see i'm past my time but if i may answer your question the key to this the key to this whole case and the mistake that the district court made the error that the district court made is that it never gave merit posa the ability to go to trial to figure out to let the court figure out where the proceeds from the  were proceeds from the sale of the entire miami dade property which includes the acre i don't know how many you keep talking about a subdivision of it which may be one dollar two dollars twelve no actually your honor the record is clear and the only evidence in the record is that the proceeds considering the miami st lucie loan the one you paid him for correct it would have paid all of it and the only reason the money didn't go there is because regions chose to breach that agreement by agreeing with the buyer only that it would that the money would not end up going to pay the mare post along because region so that loan but one region so that loan it made a mistake it breached the agreement it had with its own borrower and there are consequences to that breach and that's what best it only agreed that you could release the collateral it never agreed that you can change the way in which we all agreed the bank etc we're going to use the proceeds from the sale of the eight acre out parcel if you release the collateral those new just go away no no and here's why regions bank still had the miami dade loan and still had a first mortgage on the miami dade property collateral so when that miami dade property collateral including the eight acre the parcel was sold here in your regions recognize that absent that your view of the two thousand and eight agreement is that miami dade will be paid by my me that is the standard mechanism the first line gets paid first unless the parties agree otherwise and in this case it is very agreed otherwise you amanda recorded version in florida without being recorded him and the parties can agree to use the proceeds in any document they wish and that does not have to be a public record the lien is only a public record document that tells the world that somebody else has a lien on it so it is that such a totally separate issue which is why our view of the release of lien is that it's a bit of a red herring it doesn't really matter because regions agreed how that money from the sale proceeds was good morning ms disaster good morning so here on behalf of regions bank here's the district court correctly interpreted the plain meaning of the key provisions of the loan documents to foreclose any possibility of a breach contract and there are three reasons that support that conclusion the first in the second or related i'm going to dress them separately the first being regions bank at all times maintain the right to seek repayment exclusively from or oppose it was the borrower in the bank at all times has a right to ask for the money back from the borrower alone not to resort to collateral sources second regions bank clearly maintained as the court has recognized today already the right to release collateral to subordinate collateral to exchange collateral and to dispose of it or ignore it altogether which ties into the first point i just made which is of course that regions bank has a right to look just to the borrower for repayment if it deems it to be in its best interest the third point and that is they don't have to feel close on the collateral but the problem is you can't get a deficiency judgment when you have foreclosed unless you you say you have a deficiency judgment you don't just have a judgment on the promise  let me answer the question this way the to get a deficiency judgment on a second mortgage or second position a loan on another piece of property the would have had to been a foreclosure on that did not happen in this case as we've already because it was already released because it was meant is really not a diff per se deficiency judgment like i'm thinking like this was foreclosed upon and i see what you're saying that's correct or are there is actually no deficiency judgment entered in this case it's just a judgment on the reason the first and second provisions that i just are arguments that i just outlined are dispositive is because there was no amendment to them when we look at the minutes loan agreement that was executed in two thousand and eight which didn't fact contemplate a cross collateral is ation of two different ones that did exist at the time that docking was executed it doesn't actually in or implicitly or explicitly modify or or take away from regions bank the right to exercise its first two  say ok even if you can look exclusively to the bar and assume a promissory note not doing about the collateral and he reached their contract to keep the collateral there for this loan because of this other agreement and they could have been going to use that debt they still say it's a breach of contract because you had this other thing about the collateral i believe recitation of their argument but as judge cooke observed and as we also contend here before this court that's an erroneous interpretation of the  contract certainly because reasons bank is still actually exercising its options under the promissory note which originated under that loan see the release collateral or to pick and choose what types of collateral it would like to pursue now of course here it couldn't have pursued that collateral because it made a decision to exercise one of its rights of the promissory note to release it and that was part of the contract out of the two amendments and how you say there's no ambiguity in the two amendments that's the heart of his argument is that we've release the cat collateral firstly because there's no conflict i think the judge could correctly said that there is a option or a supplement if you will provided to the original promissory note through the amendments a loan agreement  executed in two thousand and eight in other words it provided some further detail about how payments could be made under the promissory note that just all option and they're all options are on or they're correctly characterizes options they're not modifications to the other  provisions the other reason is more fundamental in terms of the construction of the document itself when we start with the meaning of premises didn't you already does begin with the meaning premises of the court is correct when we look at the definition of premises and we walked through this in further detail in our brief i believe on page twenty eight the premise is defined as what i'm going to call the trailer park it was a property located it's a county that trailer park is not the same property as we have down in miami beach or miami dade actually they're very different and you don't have to necessarily look just down the line that we draw in our answer to find the definition of premises you can actually look right down to this very same provision two subpart roman numeral for that refers to a real point without going back to the issues we'd have with the significance of an ambiguity if we did have an ambiguity i will say that you'd have to find that a parent thread a call that  defined term could somehow have the profound a fact of overriding the definition the explicit definition afforded to that term by the parties and then somehow reconcile the conflict that such a redefini also has an argument that in connection with all these amendments or earlier that the definition of premises got changed which is not true we would dispute that and i think that we lay out the correct interpretation which is that premises goes back to the original promissory note it was a term that is or origin came from there an argument in their brief that that they changed that in the connection with amending the agreement sometime between the original agreement and the two thousand a very much which is a point that we both we disagree about that conclusion i think that come back to our reading of the bottom end of your argument if you take the tooth out to two thousand and eight agreements which were trying to memorialize what the parties wanted to do with the proceeds of the proceeds go first to the payment of the loan in question property and then to some other things where you could be sharing between the two that's correct then we in the options begin to make more sense that are laid out for the the application and there are some deposition testimony from the other side is exactly to the contrary oh no no that may be what looks like a reasonable thing for people to do but this was a very complicated situation because there were guarantors and you know the left hand knew who the right hand was and it was a good match i basically the really valuable property here the one that was going up in value was miami dade the one that was going in the sinkhole was st lucie and then from the perspective of your adversary they want to make lucie is in there a deposition testimony to that effect i think that's reason actually i don't believe judge cook looks at that evidence and look at that because of the pro level in school and because she concluded that because of the other compelling arguments that she outlines very detail it was trying to get it back or wasn't used to work in a magazine to me like ordinarily the very sensible thing to do would be your view of the case you don't cross collateral ization you're going to just make evidence in the record that the parties decided to do something it's a little you know they were going around that that we put in the mix i don't think there is such evidence here and the reason being is we have to go back to the fundamental point that reasons bank decided to sever this collateral from the loan and sell that loan off to the then note holder which was for the loan holding partners that new subsequent purchaser pursued its remedies through eight its own action whereas reasons bank then went against the property in a foreclosure action in miami dade and foreclose pursuant to those loan documents that promissory note and so that's that's certainly not the circumstance for the court today but  there was not stanger question if i'm an answer if i don't correct me but there was not enough money for the miami dade property to satisfy both of the loans that it had a first position mortgage on and the other items that are listed presumably those numbers could be added up so somebody could tell me exactly how much money that was so the question is did the proceeded the short sale proceeds pay enough money to pay off st lucie plus the other obligations into three  think as you brought up when the when my colleagues were discussing the case with you the the total fund from the premises probably we would think probably the amount of proceeds that would be attributed to the portion that is the  acre parcel that fact is not in the record because the sale itself as the court knows was a short sale so we sold the entire property not pieces of it and it wasn't even enough to satisfy the full debt under that promissory note that was held by regions it just paying piece of mind i mean it was allocated at the time of the sale to satisfy the full debt owed under the miami dade promissory note and if i can bring up another important point that i wanted there is no judgment on the m and then of course because both loans went into default before any of these sales the shortfalls ever took place we have an enhanced amount that's ultimately going to be owed and both debts have but any might that my me day went to  lender the net proceeds this is all to restrict what the borrower has to do that's correct not what someone has to do about anything that's correct or on that time is expiring but the term borrower in the two thousand and eight mer posen it's a loan agreement refers to pose a doesn't refer to the party that owned the miami dade property so would be a very unusual construction if you think about it a party that doesn't own property i somehow going to obtain proceeds from a sale of another company's property take those proceeds away from that company and then use them to satisfy its own debts that's a construction that that is simply an reasonable it would be rightly rejected by any  by any court even if there were any ambiguity certainly miami me the mere pose a debtor may have wanted to use its own proceeds from the sale of its own property to satisfy all of these four items but it's a real stretch to say that they could have taken the proceeds from the sale of another person's property away from that person and then pay them to regions bank that never happened pose a this is a fact that's not disputed as well they're pows and never came to regions bank with that pile of money or and said it just never came to you for a loan willing partners the subsequent purchaser with that pile of money and said here's all of the money the two point million dollars we're paying to you use this to satisfy your debt that never happened and we asked the court respectfully contemplated in these two thousand and eight agreements was a foreclosure sale by the bank were was was the borrower was the borrower who the owner of each of these two properties who did lien there on to the ba were they free to sell the property of may want to do they were the the state of the market at the time was that asking whether as a matter of law whether they want to do they could go out and sell the property i believe as a matter of law the owner of the property can enter into a contract of sale whether or not there's going to be or want to ask you have a really contemplated situation in which the borough selling the property would make sense then of the original argument we wanted to make a to the court about the significance of this particular provision which is that it never came into effect and never came into effect because we released the property because there were rights to just proceed against exclusively the borrower and not to look to third party sources which would make a very onerous process of creating satisfaction of the debt for the bank and certainly because there was never a sale of the property at the time of the loans went to default and the other provisions i know judge cooked  very thorough job of explaining i don't want to take up too much time in going through them again with the court if there are no further questions there are not the court for thank you thank you very much your honors i have three minutes so i have to make this work the colloquy that your honour's had with opposing counsel exemplifies the need for a trial here and his exam exemplifies this unusual circumstance that requires a trial to figure out what the party's intent was there is no dispute that there is an ambiguity between the two amendments regions bank admits that there is no dispute that there is some question as to what premises means judge will judge clevenger there is no dispute that that there is some question as to what and or means does it mean you have to pay all of it doesn't mean you get to choice to pay any of it you wish the bank wishes all of these issues needed to be addressed at a trial why the purpose of this very unusual transaction was to solve the region's bank's problems with these loans as well as the borrowers problems with these loans you had an underperforming under collateralized loan and mera posa and you had a way over collateralized loan in the miami dade property but had no revenue that the miami dade property had no revenue so the idea was but but there was a potential sale of the eight acre out parcel at that time and by the way the document says any sale there's no definition of what type of sale so so we don't know the answer to that  without a trial on the matter although sale means to me the most broad term however in order to fix these two loans because regions wanted performing loans all the parties got together in the beauty here was that the mare post alone in the mind did one loan were controlled by the same people so there could be a three way transaction that solve both problems the three way transaction was exe was documented in the amendments to both loans when that occurred the idea was that when that eight acre out parcel sold from the way over collateralized loan we can take that money and fix the problems we can take that money by applying it to the mare post alone by paying it down which is way under collateralized and get rid of that we can also use it to fund interest reserves for the miami dade loan that had no revenue and we can pay real estate taxes on both loans problems fixed and there was a potential sale of the eight acre a parcel at the time which prompted all of this in the record is clear on that and that was done signed by everyone the release is a side point in irrelevant because it still didn't address what happens to the proceeds from the sale which the amendments did so then what happens is regions defaults or breaches because three months later it decided you know what we need cash so i'm going to sell the mare opposed the loan and get a million three in cash but the only way to do that and to prevent the effect of the mare opposed to mimic a loan agreement which would have taken it's the lender their that's needs to be tried that was the error this set of facts is what needs to be tried and our explanation of what these documents mean fixes the loan regions explanations of what these documents and mean do not fix the loan which is completely contrary to the record that's why we need a trial i apologize for my one thousand nine hundred and so order thank you very much thank you both this court will be in recess until nine am tomorrow morning