lawsuit deals with one aspect of a massive ponzi scheme operated by the principles of an organization called biscayne capital this scheme stole millions of dollars from investors including rado and georgia had worked closely with the habere who turned out to be one of the schemers and having this accepted that account which a bank was confronted by information that clearly would have raised suspicions any banker it was in a position where it's all but harbor was switching out the evil s assets for assets that which a bank knew to be junked because of its relationship with the who were peddling these s s and are briefs provide the litany of facts but i want to focus on the most striking writers if i could and this purred in late two thousand those attempted sales failed and that series of failed sales would have confirmed to anybody ever and we submit it confirmed to do it should i think that there was no net market for these notes and that they were on sale biscayne to which a bank held the accounts for the issuers of those securities it was in it had a bird's eye view of this scheme and so after these that purchase with sales of the other junk that's already in the account and that i tried to sell nine times people before it could not this is a flashing red light  responsible any reasonable banker so what it do is your bank do it let the transaction go through the purchase was consummated of course anyone would want to sell it's own it's own junk into the account but the sale the sale the dispose the finance the purchase if ale of course it failed because if it failed because these same types of notes had failed in their sales nine times previously so what to do if you bank do their d cancelled the trade no it covered the overdraft to the tune of five and a half one million dollars with the net effect and harbor and his cronies walked off with five and a transaction i was what was the moment well your honor that the moment in my view happened long before this but it certainly happened if it certainly happen triggered what triggered it what triggered it was a long succession a long series of suspicious transactions in the account the nine failed sales the knowledge the deutsche bank had because of its very close relationship with biscayne that they were trading in notes that had already been cited by the s c c as being so with part of an illegal scheme that even though the principles of that scheme had been and from the industry that they were continuing to sell into in the custody agreement saying that radio was solely responsible for its own training activity and a bank was not responsible for the suitability of any investment the the kind of remit does say that but the account agreement why why does that language preclude your argument it doesn't your honor because that relates to a customer does not have the right under its contract with roger or under to essentially turn its eyes while the thieves are cracking the safe in a more low tech world that would be the analogy that what you like was the custodian of the vault and it walked out the door while the thieves were there cracking the safe and walking out with the bags of money premise that these were that this was a trust account i didn't hear much about that from my friends opening that that is the real thrust of this appeal this was a trust account and here that mr harper air was unauthorized representative and that his instructions were to be followed under the terms of the agreement so let's talk about the  r this agreement they send it to the vault which meant puts it in the vault they say we will keep it protected in iraq it's the same boat we use for our own property and we will keep it here safe because holder has the ability to send instructions say hey take one of my gold bars and deliver it to the gold dealer down the street because i want to sell that gold for our jobs not to stop and say wait a nd do you really want to be selling gold right now do you really know this gold dealer they want us to send it to our jobs to follow the authoress instructions in this case they actually called the person to confirm these transfers were were what was desired and to execute same procedures and says you know i want to i want to send only send the ten shares of my apple stock to my broker because i want to sell it and i want to by google that's what we do again we don't stop and say do you really want to sell apple at have i don't think so your honor because the financing is there characterization what happened was instructions for a simultaneous purchase and sale of notes it was not the expectation that there would be something to net zero in terms of the account balance because it was balanced out much like i said if you if you write a check for a one hundred dollars then you go on and always check that's not a financing and if it's what was going on here and let me just add under this the court's decision in i think most dramatically in shark where state street i think it was was sort of in a similar situation where they had suspicions that there might be accounting fraud or this or that and you know it as characterized i think by the complaint in that case basically maneuvered to get itself out of harms way in terms of loans and things like that case has a duty to its shareholders to extricate itself from that situation i'm not saying that's this case because it's not there are no such allegation that deutsche bank was on notice and the record is clear that when when th deficit was there they saw it as a problem and they and they and they took steps to try to fix it which which ratto north and again they criticize us you know you should have reached out to the ultimate beneficiary of the trust that's how it works you have an account of agreement it says the people who are authorized are you know have a duty to to to figure out who's behind this carefully constructed scenario which can speak to this case but are often created to to prevent people from figuring out who's back there so there was no duty to to know ring any alarms for the ultimate beneficiary and we certainly appreciate their frustration at the end of the day to have to just to fill this hole and write a check when they apparently have been that right that the doj like fully expected there to be money from the offset to pay for that purchase and st of all that's an inference that's being drawn against rado which is not permissible in the procedural posture of the case bill which is a motion to dismiss a motion for summary judgment but even if you were to and indulge that inference i'm old enough to remember paul harvey when i was younger and while the the succeeded and the sale did not however i went back to do each bank and said i want to buy seven million dollars more of the same kind of garbage that i've been buying all this time and i'm going to finance it again with assets with with but with proceeds that i'm going to get from the sale of other worthless junk and if what you've acted wasn't on notice by then it's a different reality than i used to and certainly a different reality than any banker that i know would would any banker that i know would have responded to it which affected not enquire which bank did not put its hand up and say stop let me i let the transaction go through and then funded the overdraft so that harbor and his cronies walked off with another seven million dollars in cash did georgia bank know that harbor had been dealing in the same notes that had been the subject of an i c c order identifying them as part of an illegal s knew that these notes had tried it however tried to sell notes out of the account and had failed to do so nineteen occasions and by the nd overdraft by even more by by by ten occasions it knew that harbor was using these accounts was was was using the accounts to funnel money to his cronies into a ponzi scheme and those are those to incorporate more information and there was a declaration by counsel below which identified other failed sales and then on summary judgment the record was even fuller although not as full  could not allow the parties to take a discovery so this information was before judge poe when she ruled on the motion to dismiss when she ruled on motion for reconsideration and it was even a more fulsome record but she rules and were and we've explained this in our group so i won't belabor this here but learn to makes it clear that the label on the account is not what matters what matters is that the bank knows that it's holding trust assets which is monitoring or is nothing holding you're not operating a truck they're not your trust officer it's exactly it is is it is precisely not the circumstance where is a trust that is being managed minister the issue of whether or not it's trust as a trust account or trust assets it doesn't matter to the account agreement where which a bank promised rado regardless of what label was only account or what type of assets were in the account it was going to keep and protect them as it would its own assets and it didn't do that so it is a trust it is a trust account subject to her because it holds trust assets and that's what investment advice but when information cim to it saying bad things are happening in this account this account being operated by a fiduciary it had a duty to require a very modest duty but one that