went to a closing where he purchased the hotel in devonport in vienna at that closing he took seven hundred thousand dollars of his money put it in an escrow for the purpose of is yes correct there is no escrow agreement the bank mutual bank that did this had severe problems at that time that he put together an escrow agreement and and there's no dispute on that but also your honor there's also no dispute that the bank held seven hundred thousand dollars in high school the belongs to my client they're not disputing that one statute the financial institution reform recovery enforcement act fria that says we don't have to give you back your escrow so we're keeping it that's their argument and that's the argument the use in the lower court and i submit to you there are two reasons why that argument should feel and you should grant this appeal the first congress did not intend to create this statute of their money the intent of congress here was really very reasonable it was simply to prevent the third party from taking advantage of a failed bank where the third party would step in and say we have these type of this type of agreement our interest rate was this the terms of the loan were favorable to the third party now it seems reasonable in congress says anytime there's a failed bank you want to enforce an agreement but to be in writing now the lower court interest rates contain a duration of the of the loan it contains typical terms that are associated with a loan and in that particular case the third party can obviously make up their own terms and say well this is the interest rates this is this and this was the intent of congress in creating freo so that third parties don't take advantage of a failed bank but you're honest this is not the case here the case here is there's an escrow account that money belongs to my client the title of ownership of that money has always been with my client from the date of the closing that's not in dispute so with respect to my first point this is the one of the for the reasons one of the two reasons why that argument should fail the other one is this and i raised this argument in the district court and in the film in the district court but i really think this is the strongest argument and that is that since the title of ownership of that property that money belonged to my client it never transferred to the united central bank that when united central bank said we're not going to give you that money at that point i contend that that was a in my memorandum of law you know opposition to the second motion on doc document one forty eight page five paragraph thirteen and i have it right here and i go to plead legal theory right but in response to a twelve b six motion you have to give the district court your theory right and i don't see a conversion theory here presented to the district court well your honor other than the argument that i make here which i respectfully disagree with i think the fact that i raise that there's a conversion there should at the very least required the dismissal without prejudice allowing me to amend the the  the pleading since it's there and it's uses the word conversion i would say that the argument is raised there but again the facts constitutes conversion were pleated your honor now that was that's the second reason but the first reason judge hamilton if you recall a few weeks ago i was in front of you and and judge joe used to brooke said that statutes were like metaphors you recall that the congress and free up act is a metaphor so they didn't i mean no reasonable person will believe that congress intended this statute to prevent a bank from giv back someone their money so even if you believe there was no conversion are going raise in a district court that statute that act the congress and act it does not apply here it certainly applies it means to say that statutes are metaphors well i think that you should not interrupt them strictly literally that they should be more than strict literal all right thank you by not on its own initiative and without any prompting from appellants recognize that the opponent stated a plausible claim for conversion this is the crux of the brief to the court virtually the entire brief address this one point and i stress own initiative because the palance never raised this argument to the district court in connection with briefing on the second amended counterclaim even though they had multiple opportunities to do so they filed the claim was a breach of contract claim a public move opponents soley argue that they could recover against apple e for breach of contract generally the products of their brief brief were the crux of the brief was that the dispersement statement attached the second amended counterclaim constituted in agreement that would meet the requirements of free and the owner credit agreements act and otherwise evidence the escrow treatment now here on appeal they really argue that the their claim really all along was one for conversion but for the authority cited in the motions to dismiss the prior counter claim the first amended counter claim race that up raised a host of claims and brought many legal theories among those conversion against the absolutely and other third party defendants that were subsequently  district court granted the rule twelve motion to dismiss by apple a generally based on the fact that much of the allegations were an attempt to hold united central bank the successor institution of the institution that acquired the underlying loans as issue as to the construction escrow and also in monish to palance that they should make specific allegations and they should find a specific legal theory that imposes a duty on happily the successor ba pollens refers to the seven hundred thousand is his money or davenport's money if the disbursement statement that is attached the second amended counter claim shows that the seven hundred thousand was proceeds of the loan that was advanced and for which the bank already has a finding  liability for the full amount so he may argue and it's alleged his his money but it wasn't as if there were seven hundred thousand dollars deposit this was the proceeds of the loan which is pretty clear from the dispersement statement does the f rating requirement apply to set off defenses as the free will is for the free require it be the relevant languages that the the the corporation or the successor it even on a conversion ferry if they're only basis to the funds is based on some agreement to escrow it even as to defending the conversion place that would affect the interest of the successor bank in the asset that being the  the request for dismissal without prejudice that was not requested in the brief that was not raised in unishe will brief that was raised on reply but i think judge the just record at the end of her opinion explains why he just records did not going to honorable counsel reminds me that the first many can claim did have a conversion and when the second one came in for that some reason that was neglected negligently left out but up the argument was made the word conversion was seven hundred thousand against the bank the bank becomes a creditor there are other creditors with higher priorities such as have done repair paid equipment and and so but that's an issue in should you send it back to the district court which i hope you do then we'll deal with that then i think