relationship between the debtor i p g and the defendant suntrust bank the record evidence which was required to be viewed in the light most favorable to the trustee on summary judgment establishes that that relationship in which i p g was totally reliant on the services and systems that it received from sun trust and its day to day operations were intertwined with the trust relationship that evidence of stablish is that the relationship was far more than ordinary debtor creditor relationship or lender borrower relationship to what have to what extent was that relationship to what extent did you extend beyond the boundaries of the contract between the parties in a number of ways your honor you don't make any claims of breach  contract this is all not that's correct negligence and breach if you share duty here and there's certainly a contractual overlay here because there were i think seven or eight contracts between the parties governing the based on their understanding of the reliance and and the extent of the overlap of the relationship for example to to consider the fact that by doing what they did they were putting a company out of business and so to put specifics on it it would be a duty not to kill the company when they come in to report you voluntarily and internal theft at the company so you know that if you pull the plug on this company this this company that has put six hundred fifty million dollars through your bank in the last three years wasn't just any contemplating bankruptcy already contemplating and i believe tha t there had been discussions with attorneys about bankruptcy and it's interesting the characterization that it killed the company who seemed to be attributable to  on the on line platforms well i think all of those questions go to causation which you'll notice that made neither one of the courts below went anywhere near causation there's no conclusion that the company was already going to go bankrupt in fact companies are companies consider bankruptcy all the time and that's a voluntary choice that they make but here suntrust actions left no company counsel and might have to shut i p g down most of that is is accurate in terms of what was said and but there were a lot of conversations between burgess and the bank in the company was still and could still be operating and certainly to the extent that there was a dispute in the record there and that there was no conclusion by the court about the statements being made on january twenty ninth two thousand and eight immediately before o not a good idea to interrupt you because well my understanding is that burgess first finds out about the embezzlement on january sixteenth correct and he doesn't even advise the bank as far as i can tell from this record until the twenty that's thirteen days have passed would you agree that that's the fact i know that there was a time lapse between but i don't think it was a material time lapse what can happen in thirteen days if somebody ha access to passwords for example but going back i don't think you ever actually answered judge duncan's question about the the what is the basis for your claim that there was a special food do sherry relationship or a special duty of care beyond the contractual obligation on the bank's part where is the evidence in the record that the bank was doing anything other then opening accounts doing routine monitoring of the accounts  that sort of thing where is that in the record the evidence in the record your honor is that our i p g worked with sun trust and its employees on a daily basis they're in constant communication and suntrust period of time and has access to these accounts and it just doesn't even know how much else fatha done don't they have an obligation in part to protect their own client by trying to minimize any further harm by cutting down access well one they didn't have the unilateral right to do that under all their agreements to the that that's a disputed issue in terms of what they thought they were doing and whether there was any risk because if you look at the record there are a number of internal suntrust assessments where they characterize the risk that they were facing as a and says well the ordinary relationship is dead or creditor so what's an extraordinary relationship well if your baseline of ordinary is what you see in the case law alone guarantor or someone with a checking deposit deposit account and i or any account those are ordinary relationships this relationship had we're a situation where this business was fully dependent on everything that was provided to it by sun trust sun trust went and opened accounts at banks all over the world solely to service i p g i p g tell them which banks they wanted  makes a bank in the drill madrid as i looked at those e mails that suggestion came not from sun trust sun trust wasn't giving them advice and saying here's a good bank of madrid that you might want to use your client was  was going to sun trust and say well how about opening an account at this bank so again where is the evidence in the record that some trust was giving maybe the kind of financial advice that might  a unilateral right to do what he did your honor that that provision if i'm not mistaken is in the deposit account rules and regulations which governs only the deposit account relationships and there are a number of other contracts including the online treasury management agreement and the software license agreement one of those requires written notice it terminations the other one requires thirty not the actual notice be preferable to the thirty days notice provided for in the document you from no because the point of those notice provisions in recognition of the interconnectedness of this relationship that you can't just grab the i p g couldn't just pick up its accounts and walk across the street and restarts business that they were entitled to notice of this terminations so that they could keep the business running they didn't get it was just oral rather than right well iran or i think that you can find a case anywhere that says the written notice is satisfied by not written by actual notice that reads the word written out of the contract so simple plain language analysis the the case that the district court relied on too for this this notion of substantial compliance has nothing to do with written notice it's a it's a case about a real estate contract where someone was trying to get out of it by saying that well the contract required me to hand it check to the seller and in fact i handed the check to the seller attorney at the instruction of the seller's attorney and they said well now we're not going to let you know the contract that mentioned case law you mentioned case law i didn't see a whole lot of case law supporting your position that the bank had a fiduciary relationship can you point us to simpl authority that indicates when a bank has to do share a relationship to a client such as yours sure that south carolina case law has admitted leave a little skin i think the best south carolina case on the point i p g and yet the court said that there was a tribal issue on fiduciary duty if you look at some cases that we cited from florida and kansas there's case called linden place that's a case called capital bank carolina yes you do and i think south carolina law is it would be consistent with all of these cases in terms of the statements in the south carolina law say well if the relationship is ordinary then dip your debtor creditor no duty but if it exceeds ordinary then duties may arise examples where they have found that it exceeds ordinary that's what i'm that person who they gave the money to was known to the bank as a disbarred lawyer and and basically as a result of that that created a special relationship based on the knowledge that the bank had about the reliance that was being placed on this shady character if you will and that created a tribal issue as to the bridge but you sure do unfortunately th notion that well you weren't a typical bank customer but the character of what you were doing in those accounts is the same as an average deposit an average deposit or does not have a policy exception from the highest levels of the bank the anti money laundering committee of the bank blessing this relationship which is otherwise prohibited by the bank the bank won't do business with money service bu any relationship then showed depositing his paycheck into the bank account into his bike once a month but it's still the bank tendering services for which it offers no special expertise in return it's not the trust department it ministering in the state and exercising discretion on the purchase and sale of assets within the state that has been trolled by virtue of being a fiduciary i mean as i understand what the bank and the company did in this case they offered certain services related to international cash transfers but they didn't give any advice to the company on how to trade what currencies to deal and you know that was their business they just gave  a platform that they could have sold to any other comparable koat that want to do use of qualified well i'm not sure i fully agree with that i think in addition to just providing the platform they provided employees they provided constant daily service so that whenever we called because there were parts of our business that we could not conduct without talking to them about it in other words we don't know whether you've  received customer money in these some of these accounts we don't know whether you've delivered money to our beneficiaries overseas so it's not like and as a matter of fact they weren't offering to do this business for just old anybody in fact the the bank has a policy that it won't do business with companies like this but it wanted to do business with r p g because the relationship was extraordinarily profitable and i may please the court i'm susie mcwilliams and my colleague ginny cliff areas have the privilege of representing sun trust in this matter it's been going on ten years now the genesis of this appeal is tort under south carolina law arising from the contractual relationship yet there is no such tort under south carolina law i mean it is well settled in south carolina and other states that the courts have declined to impose tort do nice on traditional bank customer relationship except in very rare instances courts in south carolina have held no duty to an into which the court recognized tort liability on the part of the bank and that's the murray v bank of america case and we cited that case because it supports our position in memory an individual had a last driver's license and imposture comes and sets a checking account and begins writing checks when the customer finds out about it she comes to the bank speaks with the vice president of b o i and says close the account and i need you to also tell these merchants that this is a fraudulent account bank of america wait thirty days before they eventually do something well suntrust didn't wait suntrust did would be a g makes that they needed information they needed certain records to try to minimize the damage the relationship the customers etc and that the bank was slow in getting that information to them or got it to on january twenty ninth when mr burgess comes in peace tells the bank i've stopped trading he stopped trading the access was only temporarily halted within four days i p g was able to look back at all of it s records it had the paper records but to the extent that it needed to look online and so that your honor i don't know if it could have it didn't we know that mr burgess told the bank goes to mr and from the record mr path goes missing and it's some points discovered missing sometime in the thirteenth of the fifteenth of january the internal and i dare say not auditor but someone who was brought in to help mr burgess look at the books as i think you're missing money and then finally once mr burgess has a range for mr path to be arrested and the secret service or the f b i whoever it is he's dealing with to try to get to the bottom of it then he comes to the bank on the twenty ninth and the service is is halted suntrust doesn't deny that but in the face of what it was told we submitted as appropriate and then within four days what mr burgess then said was well we want to be able to look online and figure out which which trades may steve still be out there that we need and suntrust literally worked for hundreds of hours provided again the same written monthly statements that i p g had gotten every single month never looked at never reported an unauthorized transaction never never questioned at all and so i think this is probably the crux of why the answer to whether or not this tor this court should create a new tort is know is that the sun trust acted reasonably now it sounds to me like if you read the appellate brief what they're arguing about is technical notice they're saying well yes you could have cut it off but you should have given it to us in  he had of the company by a fraudulent act the bankruptcy court found no evidence of any fraudulent act in cutting the cutting off the access or any of that and so recommended at the summary judgment there was nothing there's no evidence of any damage what i p g had done was cease trading they started trying to figure out how to pay back the money that they had for the to be able to recall any transactions that could be unwound and in fact as the record shows mr burgess was already reinventing himself he did he was setting up ethics transfers exactly business using the same software he used when he was i p g he's in business today he uses fifth third he had that knowing almost immediately but in the record  days when online access would have made a difference i think that's correct judge duncan but that also you would have to assume that they were also going to continue doing business which mr burgess inform if in fact there had been some huge transaction that should have closed and should have you know would have had been bigger than a quarter million because that's how much we know at least mr pastoral but just assuming that but there's no evidence in the record  fact what the record shows is that this business failed because it had a huge investment and then it otherwise co mingle the funds from its customers and paid out its salary commissions bonuses proffers of information the one that he focused on took considerable extent to support the argument that there was a special relationship is the fact that sun trust did not normally do business with money service businesses and require a special exception from their i believe antitrust department to enter into that contract that yes judge duncan what mr tomato was i believe was referring to is there is in the record about two years into the relationship under the anti mine monitoring act suntrust was required to monitor these types of businesses and in order to continue with i p g it required information from i p g about whether or not it was trying to monitor its own practice boyd against money laundering and so the documentation that was put together in june of zero seven seven months before the embezzlement discovered in the business basically stops  it is true that sun trust was continuing in its obligations to comply with federal law to make sure that it was monitoring such businesses but the fact that the sun trust decided to continue with this business based on the representations f duty or the basis for a fiduciary relationship can you respond to that tells will of about the case why it would not apply here is judge a g the steel case involved active fraud of which the bank became aware and the court rule that there may be a question of fact as to whether or not the relationship between the deposit or the bank is actually consistent with marie murray case as well because in each instance the bank has absolute direct knowledge actual knowledge of fraud that has been reported by its customer and it takes in murray it failed to take a step and there was a question about that as well in the steal the victory thank which is a bank actually that ended up though i think a whole thing you had said earlier that in fact sun trust did not want to be in the position of bank of america had once they were put on notice by burgess that there had been this embezzle mint and again this obtaining a passwords and the concern that there might be other monies taken it's going to this court that put an immediate obligation on the part of the bank to cut off any possible further access until the situation could be better understood i think that's exactly right judgment given and the other questions that have been put by th court as to what is there in the record that changes the relationship and again if the court looks at south carolina law there's nothing in this record that change the relationship between  suntrust now the suggestion that they were dependent on the bank to be able to kentucky conduct their trades and that sort of thing i would submit nixon pruitt my law firm is dependent on our banking relationship we have conversations with them we can't get our bills that we can't process payments when our bills go we need our back and our bank but the bank retains the right it just like some trust it's a contractual relationship and that's all it is but but to suggest that the mere fact that a depositor or a customer needs the bank in order to conduct its its transactions i mean that's that doesn't change the relationship and i would say you know what can the trustee argue that the relationship actually changed on january twenty nine that is up until january twenty nine this was simply a better creditor normal kind of banking relationship except it's a big client but on the twenty ninth doesn't the relationship possibly change because at that point the bank is now put on notice that this problem does that create a special obligation now on the part of the bank how do you handle the problem well that's a an excellent question and i think that under the the rationale i've put forth that you know actual knowledge it is true that the bank knew at that point there was a tremendous risk to i p g to the bank with her smart regard to possibly millions that had been embezzled from this this customer but the record is also clear it's not refuted that what suntrust immediately started doing was helping the customer figure out and they spent hundreds of hours not only recreating all the paper records that i p g for whatever reason had not maintained but it restored access within four days and so again since we are  bankruptcy judge only says the relation she never makes a finding that as to the timing that you have raised your honor what she says is well i think the relationship was something else but beyond that but this this case is not any different and the reason there was liability in murray was that the bank failed to do what the customer wanted this this bank did not suntrust did not fail to do so there's not a question of fact and if again you're going to travel in and negligence which we submit you know there's there's no duty here absolutely no duty in that but there's no breach and they must also establish raise some question approximately cause damages and i would just call to the court's attention the finding of fact of the bankruptcy judge it's it's have a senior moment would judge first found was that from the time that the in january of zero eight to this day i p g has never been able to keep track of it expenses its profits its losses because of its own poor record keeping and respectfully if this court were to say well i think there might be a question as evidence in the record that any damages flowed from the way in which the bank handled the closing of the accounts that's right and we would admit that they had a contractual right to do it so you can't convert into a fiduciary what you had a contractual right to do in any way we add the right to stop doing business with them but we did not suntrust spent hundreds of hours for the next few months working with i p g the the account was not closed some merrily it didn't close until sometime later in the summer by that time i p g had reinvented itself mr burgess was over there called a company called f x transfers was was going to town he does go ahead and put the the company into bankruptcy in june of two thousand and eight this day they cannot say what they are i'm sorry it took me a minute to find if to cannot say what its income expenses or profits that's profit that's damage numerous defects that that again the bankruptcy court found in how i peachy transacted its business which led the court to that conclusion thank you very much and we would we would obviously urge the court to affirm the summary judgment below i thank you thank you south carolina law on the issue of duty they make it clear that the existence of the duty is not necessarily based on the foreseeability of the harm in other words what the bank knew but it's based on the character of the relationship and so that's where you get the principles that well where you exceed the confines of the ordinary that's where the do use rise now i'd like to respond quickly to something judge br said and that was well on january twenty ninth two thousand and eight perhaps a relationship change what should you have done the answer is change the passwords that's what everyone had agreed to do when burgess went to the bank in fact the bank prepared the paperwork to change all the passwords and he purchased signed it and they were going to change the passwords and that was the simple answer it was only after that the bank internally and then issued the shop the company down directive and that's what we submit was the breach of duty could be no transaction anyway struggling i'm struggling to think first of all i've never understood you to identify something that takes this relationship out of the contractual and given the fact and second given the fact that i p g could not engage in online transactions anyway what's what did suntrust do that in you were to kill the company i'm not sure that it's in terms of the timing yes but there was no reason why they couldn't continue to conduct business they were but that's what an e mail said on january thirteenth but certainly there i believe there's a conflict in the record and then you can summary judgment with a conflict in your own m and i don't think that e mail that you read from your honor says definitively that the company could no longer not business and i think there's other evidence in the record that says they could first ok any evidence in the record that the f b i or anybody else authorized them to start having transactions again no i don't think there's evidence either way but i don't think that the f b i was clearing or not clearing their ability to conduct business