try to help you thank you ma'am this case arrives or by way of summary judgment that was granted by the trial court where immaterial questions of fact existed and which is a matter of fact and law could not be resolved without being in weighed and decided by the trial court and where evidence and inferences were not viewed in a light most favorable to the plaintiff in a ruling on the defendant's emotions at the onset this case is not about third party beneficiary claims not about the third party beneficiary purchase an assumption agreement claim it was not played as a third party beneficiary claim it was not argued as a third party beneficiary claim we understand that the ninth circuit in g e c c m this court in shark stated that the statute by ria directed the protecting both insureds deposits and the rights of creditors of financial institutions and b k w spokane was a creditor in fact was the largest creditor of the failed bank make spokane or bank of whitman rather sorry and b o w when you see that and we referred to it this morning as bank of whitman b k w assuming institution it is for depositors and creditors but in fact what happened here is exactly that they gave preferential treatment to the assuming institution look at the guidelines that if the i c has in fact they're encouraging from ninety one days after the there are pointed as the receiver up to one hundred twenty days they have to make a decision in this case the decision wasn't made for two hundred sixty days and what happened and i gave gave you a calendar and this really is fact driven in these cases with respect to what the statute says concerning a reasonable timeframe building because w spokane bought the bought the building from the bank for almost fourteen million dollars in the bank as part of the agreement taking the forty millions that will be the master lessee of the entire building all the triple net expenses and that sort of thing so horribly comes in and they have to decide whether they're going to accept that master lease and they have ninety days in which to do it pursuant to the contract that they have with the government and when that ninety days rolls around and in this case the deadline was going to be november second they have to decide we're going to soon the master lease are going to reject it and they have to give notice to the f b i f b i see the evidence in this case is clumpy knew from the onset their their testimony that within a week they knew that they were going to accept the master lease so they waited well we don't know why they waited but we can assume why they waited because after ninety days if they don't assume the contract they've got ninety days to get out of dodge they have to pack their bags and get off the premises under the p a agreement and it's mandatory it's mandatory that they give notice within ninety days and manage for that they make it in ninety days if they don't assume well if you're if you're the bank and you just rolled into town and you pick an over for a failed bank if you give notice on the second day you're there or within the first week you're ninety day move date starts from that date if you wait the entire ninety days you've got six months in effect to move and so it would behoove assuming institution to wait that extra ninety days go the entire ninety days and then have another ninety days to move out but that's not what happened here they didn't give notice within a week they waited to the end they gave notice on the last date november second and then they notified  nobody nobody notified banks because you now there's some argument in testimony that maybe you know a person who was an associate of the owner knew something about this notion that you never assume assumes he's lisa's but there was the evidence is clear there's no there's no notice that was given to the owner and the f b i see didn't give notice and so the clock's running the owner sitting there saying oh i didn't get notice that they assume the lease i'm assuming the leases assumed and i'll just i'll just wait to see if anybody's moving now in so they waited to february first and no one was moving and so the owner wrote to the f city bank the columbia still on the premises and they are now they being f b i see and have based on the notice received from the owner they're scrambling because they've missed the deadlines and so the record see that we presented to the court shows the if you i c s lawyers are now trying to create paperwork justifying why they're not terminating the the  occupancy upon bia and so we have some case memos that are being generated where they have to justify why they're doing what they're doing and their justification the sole justification that they presented to the underlying truck court was that ninety one one hundred twenty days repudiated by february first the owner then could have hired brokers across the state across the region saying listen we've got a brand new office building here that's that's available for a master tenant and then engaged in different goshi ations for a partial least but they were operating under the assumption when they were negotiating for the partial lease we already have a master lease so you know we're not too interested in anything you're trying to carve out and so the issue becomes how they were  how they were penalized by not having all of the facts and in this case congress is well we didn't have to give notice to the owner when we decided not to assume there's not another case in the country we were able to find where and assuming institute you did not assume a contract didn't give notice to both the f b i see and the owner why wouldn't you why wouldn't you give notice to the owner that hey we're not assuming the lease unless you've got some ulterior motives to come into play and the old terrier motive here was before they repeat before klum via refused to assume the lease they actually sent out a notice of intent to building owner across the street and agreed to lease a building across the street so fallback was a position was well if we can't negotiate a partial lease that the owner doesn't know anything about in terms of your bill you'd assume we've got a fallback position across the street in what happened was they played the game too  give them additional amount of time beyond the move out date and they didn't move out until june thirtieth so the question is how did they stay on after february first under what authority the f b i c under their p a didn't have authority to extend that mandatory move out date and there's nothing in baria that gives them the carte watch authority to renegotiate the terms of that p a without giving notice to the landlord they their argument is clarifying that i'll take twelve minutes and i'm going to stand back and take three all right at the outset as your honor said there was there was no reason for because to be negotiating with c s b over a proposed partial bank from bank of whitman to columbia state back invoice avoiding unnecessary and burdensome obligations and then when more has an interest obviously in finding a substitute tenant as promptly as possible in these saying you thought c s b had had a lease for the whole building that was at assume the lease for the whole building i don't think that's borne out by the record though because the resort on many occasions the c s b had no interest in the lease on the whole building  negotiations for a portion of it you know had been going on for some months so i think the landlord did know the let's assume for a minute that they the landlord didn't ok your position is what that consistent with your institution was to move out make sure that they had enough time to get all their property get get all their personal property off the premises this is a particular concern because there was a data center on the property that there was all it was a big whitman data center was all it was we know whether c s p is coming or going and we can we can work with c s v on exactly how much time you need will make their pediatrician effective them so that's that was our concern then we're concerned about thing the integrity of customer data and time lapse with repudiation and he's going to calendar that details the number of days but he's also cited other temporal benchmarks that he thinks would in fact support that this is an total period here it was two hundred sixty days so that's about seven months and the employees retirement in place retirement system in case it was it was a similar length of time to what we had here but there were that there was intervening litigation over  in light of the circumstances and here almost all of the period throughout all its almost all the two hundred sixty period that it was it was either uncertain whether c s t was going to stay on the property or not whitwell it wasn't certain whether the c s t was going to stay on the this was decided on summary judgment yes is this one of those not infrequent cases where the trial would make a bit of difference i don't think so your honor so i think i think the record was quite well developed on would be a jury trial here with their army is there a prayer for a jury trial i think there was a jury demand but i think the record was was quite well developed on the justification that the reasons why the f t c waited as long as it  motion after a full presentation of evidence to the jury would would yield the same result exactly i take it there's no indication in this record that there was any other banking operation that could come in and take over that  know there are no substitute tenants no and i think it's significant that there wasn't a substitute tenet until april twenty third jean is this is a very tough market to fill out there were a lot of spaces there were a lot of willing renters on the length of the period  similar actions have been taken from someplace like chicago faucets and you know whether whether more where there's more potential for substitute tenants in that case they would likely be some evidence in the record and there isn't here exercise it because of the circumstances here because the parties were were still on the property were trying to trying to negotiate a deal to stay on the property so it's not true that it was mandatory that that c s be leave out after hundred eighty days yes yes he could make that mandatory but it didn't here and the record is clear that it did didn't do so because it wanted to give the parties that ability and wanted to make sure c s b had enough time to move it's you're one of the lucky advocates who lawyer that went before didn't use up well you case is materially indistinguishable from the court's decision in two thousand and twelve in the g e capital case that was referred to earlier it's the same underlying purchase agreement in every respect all of the cited provisions that we were relying forcing that lease against colombia in this case would have the same effect you have to read out provisions of the of the purchase of an assumption agreement that b k w has no standing to challenge to enforce to interpret and the  s is clear that it doesn't just cover cover contractual claims it bars equitable claims under the p a a and with respect to it so in this case here where you are alleging that the conduct that colombian engaged in occupying the building paying rents paying taxes making sure the property manager managed and dealt with the subtenants are all authorized by or in fact required by the a when you're when you're when your argument is based on the content columbia's performance under that agreement you can't get around it because you don't have standing to write those provisions out of the agreement so under g applying the court's decision in g e capital and the decisions which are which is consistent with the decisions of the appellate courts across the country if there are no questions and i will thank you thank you thank you get out of the building in the theory was implied contract i spent two weeks earlier this year trying in in federal district court in northern idaho this very case whether or not a third party can assume by conduct  contract by its conduct and by its actions and we started the case of matter a matter of hatton truck and traktor sixty nine b r one twenty eight and that would be washington law if they've engaged in conduct after february first leading the landowner to believe that in fact the contract has been assumed by their conduct they keep paying the bills they keep occupying the space they act as if there are a triple net lessee then the question is did they imply that le this contract and that's the from federal common law state common law and the you know the key case in the state of washington that was a jury instruction in the in the district court case they tried was the case of  north pacific railroad versus sunnyside five four decision thirteen eighty seven the the ruling was the third person may of course assume the obligation expressly in writing or may do so by implication where his conduct manifests an intent to become down and if you take a look at the conduct that was engaged in back in texas where they're doing all this paperwork the first the first time that they identify anything at all about why they need to repudiate was on december first that's in their paperwork and under similar first there's not one word in their rationale no reason why they should repudiate about this lease negotiation that was going on not one word until the until after february first that's when the first rationalization comes in well there's a sleaze that we've got to consider that kwame was trying to engage in and with respect to that their arguments on that there was never any question that the master lease was going to be repudiated never presented to a jury was that claudia knew within a week that they were going to not assume this lease then the reasonable period of time for repudiation would have been on the ninety first day when they actually gave their formal notice and that's a question of fact and i think you acknowledge that this is a fact given case and i don't believe that the trial judge could slam the gavel on the notion that there was a two hundred sixty day delay here and say that as a matter a law that was reasonable based on the facts that are before the court in closing what we're asking this court to do is to reverse the truck or and i think that you can determine as a matter of law the based on the statute the guidelines of the f d i c and the existing case law the two hundred  six days on his face is not reasonable we can't determine it's reasonable you're saying but we can determine it's unreasonable correct all right thank you that's that's exactly right and thank you for your argument that case of b kate obvious poking in versus f t i see is