owed by the mentions the mentions received a two hundred thousand dollar home equity line of credit from the american home mortgage american home mortgage subject subsequently assign the debt to prime asset and on nov twenty ninth of two thousand ok if you could get the law and help me we understand your honor we will do that the procedural posture in the issues on appeal i would like to address those in the district court all that filed a motion for summary judgment and the district court ruled in favor of best service and mentions on their motion for summary judgment so those are the issues on appeal with respect to the service and we are some concern about who's a proper defendant in this case maybe if you could break it down the best no question that they're here on appeal and you are disagreeing the district courts granted judgement to bass tell if you can and would help me if you could tell me why you think the district or erred is to best first and then we'll talk about yes your honor best rights are solely as the collection agent for prime asset so the best way to understand that your honor is that rights to pursue the collection of the debt because it was just a collection agency selling your client before they hit sell that bit you on it was it was an assignment for collection purposes only it was not an absolute assignment if you read the assignment it said it's assigned for cable then title to the loan in title to the debt title to the asset became vested in my client out of promises and at that point best services rights became terminated because it was solely the collection  agent purposes of collection so sebas then you would say would have the same defense that prime would have with regard to this disputed part of the contract correct and that is that then gets into like you were about to get into whether or not that what we have is a contract to a limitation on remedies and under florida law in order to have an enforceable contract or a limitation on remedy for breach of contract the limitation must be one mutual t unequivocal and three reasonable and in this case it's not a mutual limitation on the rheumatiz and it's not a reasonable limitation on eddy's as i look at the cases that you cite all of the florida cases that invalidate refused to enforce contact clauses limiting the remedies are in condo and land sale type cases where you have a very sophisticated seller an unsophisticated buyer but here you have two sophisticated commercial parties so  why do you think that that law would apply to you your honor i recognize that a lot of the cases deal with condos there are a lot of condos in florida and it appeared to be that some of the condo developers were using this type of r that the cases are not limited to a real estate and with respect to the sophisticated commercial nature of the parties that the one case i would point the court to is metropolitan dade county versus worsham brother company and your honor i would say that both of the parties in that dispute were sophisticated parties certainly dade county sophisticated presumably the development company works in brothers as a business it's a commercial property and in that case it was involving a construction con so it's not about real estate it's not about a condo and in that case the contract provided a mutual a limitation on the contract contract al remedies if the construction contract were terminated by either party then there were no damages ok so that's a mutual agreement not have any damages but what the florida court of appeals said is well if they'd county caused the breach no remedy at all that's an illusory remedy and all of these key decisions the hackett case miami versus dade county the ocean dunes case if all you get is your money back that's not a remedy and that's on enforceable and that's the facts of this case all the different the district court ruled that kayla got seven hundred dollars back it got its money back it didn't get any cost it didn't get any interest ok so that's no damages at all and all of the cases from florida are very consistent that's on in forcible because it's not a remedy at all so if you look at the hackett case it says that in  the party got their their money back and interest and then hackett the florida court said well that's your money anyway just because you get your interest back on that money that's not a damage that's not a remedy so the only decision and must be mutual and here it's not mutual because we're revert back to your honor's question about sophisticated commercial parties there's no mutuality in this obligation ok so if you have a package of loans and the sell mistakes are going to happen and i think seventh circuit in south financial be mcfarlane noted clearly the parties are sophisticated there's an allocation of risk you're getting each line for pain and the understanding would be in return for that very favorable price when a mistake happens then this applies and you've got your client sign this provision there's also provisions section eight one that says the i would draw will be allowed  by prime if there's an ability to satisfy representations your centrally saying we signed it we got a really great deal on the and then when things go south we're just going to ignore or wipe out those two contractual provisions they don't exist when they to want to get to why they're even here but we're still talking about bass and bass that makes an equitable argument that you knew full well they were out there working they spent time they spin energy they got this is simon before you sell these lines and you know what they're doing and you know they're going to court and they succeed and then you wait and pounce after they've done the work to get the money and their argument is as a matter of equity even if you're right on this contractual provision that has to best you should not prevail against them nice that they recovered could you respond to that argument yes your honor that's the money hadn't received claim against best service and under georgia law and action for money hadn't received laws were another has received money which the plaintiff is entitled to recover in which the defendant is not entitle in good conscience to retain the so specific specifically factually your honor we put best service on notice they knew that we were the actual true owner of the debt so they went out and collected the debt sure your honor they worked hard but they did so with full knowledge that they were working on behalf of someone who had already conveyed the asset so going back to the beginning of this argument your honor they were the ass in a for purposes of collection they're the collection agent they know that that cable is the true owner of the debt so they proceed at their own risk the case that's closest on point and in grady had no notice that the insurance company mistakenly made the payment here best service had notice and the other distinction is that and pay the money in that case time did pay the money so the money didn't come from us this does argument you're making about equity in good conscience i don't see where you raise that in your brief on appeal that claim have to go back to see whether you met the element if even if we agree with you that the district court err on this claim wouldn't have to go back so that you could show the other elements of the claim it would your honor i think it was not raised in our opening brief because my answer your honor it was not raised in our opening brief because what we focused this appeal on was the actual ruling by the district court judge and the district court judge ruling in this case is soley based upon the contract to a limitation on rheumatiz and section six point three so you're right the district court did not address that it was raised by best service the record it was submitted by mr mauer upon provision of nation by my client and a document filed july twelfth two thousand and eight is that an accurate statement of the citizenship of the members of your client yes and as may ninth twenty four fairly new to this case the other attorneys have been living with a quite a bit longer than i have but we did raise jurisdictional the court recently that i'd like to address briefly as mr jones indicated in his presentation the claims that closing the case because that order cured the port of the part of the notice of appeal that was premature i don't believe so certainly for purposes of this appeal because it has it's the claim still haven't been adjudicated on the merits and there hasn't been a final little to no action taken with respect to the merits of the claims there was the remainder from this court directing the parties to disperse stiction all issues but in terms of prosecuting the claims the actual substance of the claims there was there was little to nothing because i'm about to get into that portion of our argument as well in this concerns really the elements of the money hadn't received klein and our arguments as to why beyond the contract if the court correctly the ass ignored they step into the shoes of prime asset and as of december twenty first thousand and twelve prime asset to write from nasa tried to the mention account were subject to the assignment to my client best beyond services contract it was an assignment they assigned their right to best service and that well predated prime assets or i'm sorry well dated cables perch count from prime asset in fact the original assignment to best service occurred in november two thousand and two and november fifteenth two thousand and eleven more than a year prior to the sale between from  service has that account for collection best service is acting to collect that it what does cato do after they get the account there was in fact an e mail that was sent to best service the e mail was equivocal at best there's no demand that best service cease collection effort no terminations of the collection assignment in fact the language of that e mail reference is paraphrasing but we just need to see what's been  what needs to be so you know even assuming cato acquired form completely right to that account they did nothing to exercise any right to terminate the on there's no dispute this case that service collected that is no dispute that they exerted efforts to do so and were successful to cable took no steps to either intervene in that case to send a collection efforts it did collect and under the time insurance case they are entitled to retain sixty thousand dollars which is their fee under the collection and assignment agree thank you the focusing on the claims against best mentioned for money had received which is the clear focus of the questions today you know the district court as noted earlier did not rule on anything other than the fact that cable did not have a claim for money hadn't received because of section six point three and so you know as discussed earlier that provision is on enforceable  your honor we have not abandoned that claim we made it clear on in the brief that we were appealing on the the district court's holding which granted summary judgment to best service on the money had received claim and we focused on the the decision that the court made the only ruling our determination by this court by the district court rather that we had no claim against best service was that we had no claim for money hadn't received because of section six point three so we focused in our brief on what the district court actually ruled with respect to the abandonment issues your honor in the opening brief the  opponent preparation for the arguments here today and and i was reading the briefs you know it occurred to me ok this is really sort of an alternative the rulings type issue because what we focused on in our opening brief was what the court actually ruled on and if you read sap oppose it involves a case where the district court made alternative rulings plaintiff wins or plaintiff loses because of under two different scenarios here they're just saying i don't want to take up all your time on that issue and i und your argument ok thank you roger so you know i think you know focusing on you know i think again the district court should be reversed on that so we can go back to trial and actually have a determination on the money had received claim i don't think summary judgment was appropriate on that claim i think at a minimum genuine issues of material fact existed on that claim and so you know again the the issue is before this court is you know whether six point three of the contract between prime asset and cable bars claims that gets best service and the answer is based on that the district court's erroneous ruling on that point  of best services in prime assets argument that basically said we'd abandon the claims which we had and so that sort of makes you never feel that order that was in august that's a very different order best not an order has anything to do any of this it's the whole case and you never appealed that order yes your honor that is correct but it's so it's it's a matter of it is inextricably intertwined i've said that before it's the same issue and we would just take just a five minute break before we hear the next case thank you all