checking overdraft is a loan or an extension of credit and in our view neither the court below nor the banker on appeal has provided anything from the text of the regulation issue twelve c f r section seventy four thousand and one to judge the business dissent in the st circuit but i think our broader point is that outside of this regulation it's basically unanimous in overdraft is paid credit is extended that was the position of the common law it was  appears to have been position articulated by the supreme court in one thousand and four dollars in the citizens national bank case it's consistent with the economic reality of the transaction it is a position that is embrace by nearly every banking regulation we c find on the books today with the sole exception of the one before the court today and it appears to be if position has been taken by o c c itself on at least two occasions so we discuss in the papers the two thousand and five joint guidance on overdraft protection which the comptroller signed which  states very plainly what an overdraft is paid credit is extended and treats overdraft protection as a type of short term credit product which is exactly how we think it should be treated here and we don't accept that helps i could i just ask you is is it possible for our overdraft coverage to be a lot as you argue and at the same time and overdraft fees not to be interest is that possible i  then they would not be considered an interest charge under this regulation or i think generally and in usury law what are allegations at this at this moment and we're obviously on a twenty six appeal is that there are no other services provided and that  the seas are imposed simply because credit has been extended so at the moment i think the answer is that these fees are interest charges under the regulation and let me ask you then about the  as a non exhaustive list of types of interest charges that these fees are included but it is our position that this this phrase extension of credit has long been understood doing include this type of transaction and given o allegations that the fees the extended overdraft fees that is are imposed solely because credit has been extended they are ambiguously covered by the regulation put in that not exhaustive list to one side so that it's nothing explicit in the governs how we look at these charges but that is something that makes the regulation ambiguous as well this is this is i think the nub of the disagreement we think that if it does not that that we don't need a specific statement about how you treat these charges in d the regulation to find ambiguity because that the overarching term extension of credit is not one that is considered ambiguous but to the two thousand and seven letter to judge matheson's question that so c c had said six years before it issued this letter that it had then persuaded by commenters that there were complex in fact specific reasons not to issue sort of an all purpose rule governing these fees that instead it would leave the issue unaddressed by the regulation and what i find significant in the two thousand and seven letter is that the letter seems to embrace the kind of all purpose rule that o c c issued just six years earlier and it does so not just it doesn't just come up with this rule but it does so in a way that finds that this isn't even a a credit extension i mean that's the last part of the letter it says when the bank extends you one should we treat the difference in fees that a bank collects when it covers an overdraft as opposed to when it left the check balance as interest charges right o c c said explicitly if you view this as an extension of credit it said in two thousand five that it was an extension of credit but here we are in the letter in two thousand and seven saying that this isn't even a transaction that creates a debt and you know i'm not saying that that an agency can change its position but ordinarily we ask the agency find that in that letter well i think that is that at the very least the clear implication of the very end right because that the fight in the california case was over whether imposition and collection of these is was a function of the credits in the account you know you not you're not collecting the debt which i think is a pretty stark departure from the way this transaction has been treated otherwise that requires some explanation and so that's it that i think is th acknowledges that the overdraft protection program that it was considering included imposition of extended seems like there's no explicit discussion of the specific issue we have in front of us today  i think deference under skidmore is inappropriate here is and this comes from an argument the bank is making here on appeal if it points to a footnote in the two thousand and one notice when o c c said comment or since i was raised complex in fact specific concerns that persuade us that we can't promulgated a single rules governing these types of fees it dropped a footnote in the footnote says very simply in the most recent decision of which we are aware federal court held that these fees were not interest and it's a citation to the video tracks from that footnote to the two thousand and seven letter and i think that's that's telling because what it suggests and i think the bank may be on a something here is that o c c isn't it wasn't in two thousand and seven exercise an independent judgment about the best way to interpret the regulation but it what it was doing was interpret it in the way it thought the case law required that he read the video tracks decision as applying to all of the fees imposed by the banks that asked for the letter in two thousand and seven  and and so just simply construed them is not interest charges and if that's the case and i guess i think there's reason to believe that that may well be what's happening we're not we're not talking about skidmore deference anymore because you mean skidmore itself right this is a program regulation that had an uncertain application to a particular situation and the court said well you know the secretary of labor has a lot of experience administering this regulation and has reached a recent it's really about how to c and i'm quoting declared that the federal definition of interest does not take precedence over the manner in which the states defined term i have to say when i read that it made me wonder especially given that the court then applied florida law to determine that the overdraft fee was not interest why isn't the issue here a matter of state law instead of federal law well i fees was do we define interest for the purposes of this of this dispute with respect to state law but i understand and i think that's how i i probably would have answered my own question but that passage in video tracks  as been troubling me ever since i read it so i wanted to get your your hands you know well i think this there are several issues i think with the video track decision and this is one of them i mean there's a whole discussion about applying state usury laws to  hey putting aside for just a moment the multiple district court opinions and circuit court of appeals opinions and yours you see interpretation to support our position i'd like to just start with the basics from its inception the national bank act has authorized banks to perform multiple functions including on one hand lending functions the extension of credit and on the other hand the positive sense receiving deposits here we have today the regulation that we're focused on itself has two parts seventy four thousand and one dollars that defines interest for as any payment compensating a creditor perspective creditor for an o the only question presented by this appeal is whether be ok asked extended overdraft fees somehow though there they are arise out of a deposit account agreement in a positive context somehow belong under seven point four one's definition of interest as compensation for an extension of credit very importantly that and as the court has acknowledged the mr walker acknowledges and admits that initial overdraft fees also part of the same overdraft service that arises in the deposit account context those initial overdraft fees do not constitute interest put money in your checking account that's of the cause once you overdraft overdraw that account if the bank steps forward with its own money and covers the overdraft doesn't that change the nature of the relationship all of a sudden the checking account holder always the bank money which has been advanced to cover the shortfall then you've got a credit creditor relationship and it isn't the reality of the transaction that the overdraft coverage is a lot ico overdraft given the context again the fact that it's the customer who's come to the bank who's open a deposit account has put it his funds into view count and it's has is regarded in that sense of being the creditor in the deposit account context where the bank is the debtor that's the context this event of an overdraft is a service that's provided at the bank's discretion in the context of that of that relationship under that deposit agreement it does not resemble busy a one situation in which the customer approaches the bank asks to borrow money and then agrees to terms on which on which to repay that money  arguments basically mustn't tell you have that formal request for a long enter the question of interest does not arise at all your honor i think it's possible to imagine some scenario and i and then there are  cases particularly older cases and times in which banks have charged what is clearly interest for overdrafts have said you're overdrawn your count by ten dollars and we're going to charge you x ray over however long your account  is entirely different from that oh that also is a distinction you rely on that it's a flat rate and nothing percentage based on principle yes yes it is i mean are you are you arguing that  zero one is ambiguous or unambiguous seven point four zero one is plainly not ambiguous in favor of the plaintiffs position in other words there is looking at the portion of the regulation that covers all other national bank charges in feelies there is there that section c says if it's interest you have to go back to seven point four one so i mean the question raised by this appeal i explicitly answers that question now and then to get to get you your conclusion then you rely on i assume the two thousand and seven letter i do your honor as well as the not entirely your honor the fossil record for example the st circuit court of appeals did it in one part of its opinion deference hour to two thousand and seven interpretive letter however it also said that even in quote the two thousand and seven letter was deserving of persuasive value on the basis that those fees arise in a deposit account context that they're connected to overdraft which is under so you're telling me that the faucet court majority for this court to agree with your position can it rely on the regulations without reference to the two thousand and seven letter yes i think the it's not in either one dollar of the regulations that you're relying upon but seventy four thousand and one a does list as an example cash advance fee that seems similar to what's going on here doesn't it after all if the if the account is overdrawn the bank covers the difference isn't that an advanced cash that they're they're charging fees why why wouldn't that be an argument to and the entire context is that of a loan where the customer has taken out a loan and has received a cast of vance from from the creditor and that is not the situation that we're dealing with  here i guess i'm still not clear on whether your argument as the regulations unambiguously support that these fees are not interest or that the regulations don't answer that we need to go to the two thousand and seven letter i mean is it one or the other it is certainly if i have to choose i will say it's that it is ambiguous that this precise question is not answered by the explicit language in the regulations my point really is just to say that the structure of the regulations and it indicates that these fees do belong under seven forty two the to the extent is ambiguity however because the regulations the language does not directly and explicitly answer the question before the court we can look at the two thousand excuse me of the o c c is interpretation and there's two places one is the two thousand and one commentary that the agency made around the two thousand and one amendments and of course that was a formal rulemaking public notice and comment process and then the other is the two thousand and seven letter and then in her in her nd opinion she made clear that in addition to that to giving regard to the two thousand and seven letter she was relying on a multitude of court been well if if we're into the world of our in skidmore don't we st have to have a district court determine st of all the clear characters that we are analyzing here we'll see how far is ambiguous and do we have that here ten circuit cases indicate that yes the court should find that the the language of the excuse me my time is up and what it is that the language of the regulation is ambiguous in order to give regard to any agencies interpretation and yes in this case that is that is what the courts did and it didn't do that here right that the district court did not there is sums and i was very curious about where that practice it comes from so in my preparation for the argument i stumbled across a letter i mentioned earlier that nine hundred and eighty four interpretive letter that's available in one thousand and eighty four wes check is written against insufficient d funds going to charge interest as well and the answer came back yes you can that process if he is a deposit account service charge but you are also authorized to make loans and charge interest on those loans and that's what you've done here so you are authorized to charge interest and one other point i wish to make just madison you raised the inclusion of cash advance fees and the list of leicester gives interest charges and i believe that includes deposit advance fees which sort of undermines the defendant's argument that this regulation contains a very strict distinction between deposit her and lending functions so those are the two points i want to make my time is up i haven't answered any