thank you harris i can good morning ladies and gentlemen welcome to the ninth circuit judge smith and i are very pleased to be joined by judge sidney stein from the southern district of new york for personal reasons for family reasons judge stein is appearing by video on the briefs that is tong versus lynch movie or versus c w a ramona and humphrey versus crowns we have three matters on the wall argument calendar and we will take them in the order in which they appear on the calendar the first case  brown versus bank of america hundred forty nine homes assigned their claims against various banks to a company named lifesavers which in turn assigned them to mr brown when the court below dismissed the second  complaint it made four incorrect rulings and improperly dismissed the rico claim it improperly dismissed all other claims on the grounds that they could only prove pursued by someone with an ownership interest it limited any amendments to one mortgage thereby dismissing thirteen hundred forty eight claims and it approved the introduction into the record of an anonymous unsworn email whose sole purpose was to taint the procedure i'd like to turn first to the limitation of amendments because that's really why we're here if we'd been allowed to amend all the claims we wouldn't have that we would have appealed so you really turning what the district court did was it said claims regarding each of the remaining thirty eight hundred forty eight mortgages shelby filed in separate actions with each case being limited to a single mortgage that meant if we had gone forward with a single case the other thirteen hundred forty eight cases would have died right then now when the court did this is it because there was a statute of limitations problem well there may well be i mean the parties case and every other case can be brought your honor there's a procedure to sever claims i've been in cases where they've been severed normally the clerk is directed to you know look the claims up with each said if you're going to refile you have to refile on by one person so i could if you had found the complaint a satisfactory complaint he could've still severed it and created thirteen hundred lawsuits based on the one complaint you just you just could've piled all these people together and made him the ombudsman general for but he didn't do for you when he said you can only and then come back with one mortgage he was saying however you choose something normal what happens in cases like th plaintiffs or thirteen hundred separate claims on property in california when you file your third complaint because that's not going to be proper so what he meant what he said was you got a file new claims those new claims would have the new day and i was going to get this eventually but under the court's you know russ versus four shall lay a decision he should have performed a prejudice analysis because obviously we  paperwork for you there's a timing issue there are some claims that have statutes of limitation this case was originally decided it was filed in september of two thousand and twelve this decision was reached in february of two thousand and fourteen that's a year and a half and there were still other issues involved in the case that's one of the reasons why a prejudice analysis has to be undertaken why why can't you why wouldn't you just come in and say judge well that's a risk because it won't relate that well finally buy a new case but the problem and the record doesn't say anything you make a big presentation right now make a representation which i i respect you as counsel but the record doesn't say anything that you're now suggesting that's why i asked you the question about the limitation because it seems to me that in each one of these situations there's a way to get around any one of these problems you represent you now represent to happen but i don't have a record i don't know needed poor old judge hatter have a record and therefore all he did was say bring one of the when there is a series of transactions are common questions of fact and law we have both of those here the commonplace because they all involve real property no that's a common questions of law have to do with lasky and now even over and there was a series of related transactions that was the bulk securitization of mortgages using birth as a conduit our argument was that when you went through when you got to the end you had invalid assign and these cases all involve that so and in fact the rico claim at great length showed how these cases were all high together so we don't believe that the court was correct when he severed the claims there's almost nothing in the opinion about his basis for severing the claims they're not even a mention of a case a statute a rule there's just a statement about miss figure i see from the clock that i can see that you only have five minutes left i'd i'd like to move you folks except the collapse of the panel on the issue of the assignment it seems to me that's the most critical  mortgage and i don't think that is a plink bill to this particular case there is no law in this circuit about how to assign claims and it seems as if then this judge said well and since i don't have any law for it first of all i've got to determine whether you can assign him at all california and remember these are all california homes california homeowner california statutes  low the broadest form of a sign i understand what they allow for but the fact is we're talking about a federal rico action we're talking about the assignment of that action and we've got no ninth circuit law that says it can be assigned or how do was sign it actually in the kelly case the case though when it's fucking about what to sign up or not a sign of what notes favorably national mortgage and says rico that is absolute proof to you judge smith that this assignable in the ninth circuit well because i looked at that case and i'm not sure you're right my worry is this if there is no law on the ninth circuit about whether assignable or not and you're looking to other places to find out about that assignment it seems logical that one would pick a sr circuit and if circuit and with that is the third circuit and then one applies the third circuit it seems a little disingenuous to suggest that because the third circuit would allow the assignment muster and you know the court also said it couldn't reach this issue because mr brown had an attached that's six thousand five hundred thirty one pages of assignments for the second amended complaint assignments are contracts under rule eight they can be pl you know generally ah but why did he say that i mean the bottom line is the district court dismissed the case without prejudice and then he said and that was to say you can come back and then he said looking at what happened in the third circuit i've got to have an express assignment you have an alleged one you haue one put anything in your complaint which would suggest one so come back with that stuff to assign and litigate model is flawed the united states supreme court looked at an assignment of fourteen hundred clients and said fine if fact it was not a great length about how nasa scientists have certain  let me ask is sprint and then i trust case this isn't in and i trust i understand this is the only reason i ask you the question is when the third circuit was looking at this thing he said because and i trust cases you have to import the part of me and i trust law that looks like rico and there's an awful lot of rico which is not which is not taken from from the and i trust th respond sure there's a history here the assignments were the subject of a special status hearing that and on for forty five minutes there is five hundred pages of the assignments in the record they were in the first amended complaint but everyone knew they were there thank of america commented on them the judge knew what they were the fact is it's not like people had no idea what the assignments were and the assignments which you could find in the record clearly say all the claims of any when the second amendment you know there's a history to the second amended complaint i know originally we had someone acting pro se they got a lawyer the lawyer looked at this sprawling complaint actually filed a motion with mr jacobs who's my co counsel here filed a motion describing what he wanted to do said he wanted to do a streamlined complaint that would rely heavily on cable so that people could see the substance of who the a signers were where they lived what their properties were how they stood with respect to banks and murderers and other things and that was approved and he was given extra time to do it we were trying he was trying to go from this sprawling pro se complaint to a more condensed complaint and no one objected and so at that point in time we originally mr brown acting on his own thought there were this many assignments mr jacobs did the research and found all six thousand pages i just didn't think it was appropriate to add six thousand pages to a complain and specially when everyone knew what the assignments were if if i could read the indulgence of the court i would like to say just one thing about the child who case which has to do with counts two to sex right and the point i'd like to make you know besides the fact that there are lots of cases going the other way shall food on its own terms only talks about suits to quiet title and in some victor it says the requirement could apply that suits to cancel instruments well that's count six the other counts two through five have nothing to do with title or instruments in fact the count for wrongful foreclosure is a tort count and tourists are a chosen action they obviously can be assigned they are not property related i mean i think there are other problems which i have to there are one hundred fifty years of law going in the in the other direction and the fact is that that even if you take it on its own it isn't is broad every conceivable claim related to property can only be brought by an owner and also as we raise below as we raised on page eight of our appellant's brief as we raised in our in our reply brief if this ownership is a is as the court said this is a jurisdictional issue you can't bring these cases without having ownership we say that under twenty eight u s c six hundred fifty three we should be allowed to amend the complaint because in fact in addition to the assignments mr brown has grant deeds from virtually everyone but had he had the ability to amend any way and you file the notice of the intend not to a man and so you i mean you're the one who stepped out of amending and it seems to me used to empty out of it on the severing since you started out with severing i'm just trying to make sure i have the facts right well there was no severing well hold of your argument about that all right so you stepped out because of that argument as i understand well it also this circuit has said that this is an appropriate way and i think aren't say this is an appropriate way to stand on your and move to appeal because otherwise what we would have been doing is spending three years litigating a single case before we could get to this court on the issue of whether the jointer was correct on the issue of whether the dismissal of the other thirteen hundred forty eight claims were correct and at the same time we'd be wondering what to do by the way these aren't claims these are people these are homeowners they've been through a very hard time some of them are here today the fact is we needed resolution in a way that preserved everyone's rights if this panel decides that that the judge was incorrect below then we go back to where we were and we can handle this case in a much more appropriate fashion and as i think everyone knows the law has moved dramatically in the favor of the appellant's mr cell you told us that property what these documents are is that they are documents they are actually executed in a form that would make them recordable in california law where each of the assign ors their recordable but they have not been recorded have not been recorded and you you know you always have the option of not of not recording you lose claims against the world but you have claims against people and they are grant deeds and they assign originally to life savers a five percent interest in the property and for valuable consideration so and so grants the lifesavers you know an interest in the following property i have one sitting here in front of me but they are granted there is a lot of discussion as to their effectiveness but there is nothing in the law that says to be an owner you have to have one hundred percent ownership so they were there doesn't that  create some some additional questions though about a particular we've got to questions about title if you don't have all of the owners before the court well that issue actually ironically that issue is being litigated right now in that the claims that could give rise to money judgments have been completely assigned to mr brown therefore there is no risk of double jeopardy right now it sounds like a different situation so i asked i asked specifically if it if it affects the titles office in the nature of a quick claim action or something like that you don't you have to have all the property owners before the court i don't believe so but that that's an issue that we never we never reached in this in this particular case good morning your honor snuffy's checker gave for the bank of america defendants by may to start off with i'd like to just make a few comments in response to mr masel his arguments your honor asked if there was any indication that title to property was assigned to mr brown in the record i believe mr masel he said yes i don't think there is there's only one allegation relating to simonton secondment complaint and that's the second  paragraph found on page three hundred thirty five the record and as far as i know that's it everything else is outside the record and should not be considered by this panel secondly mr masel he also spent a great deal of time talking about assignments in the first man complaints but that was superseded by the second and complaint and as such is a nobody so i do not believe that this panel should consider any of those assignments either and there's a response your honor neither i and i don't think more importantly the district court was asking mr brown to attach all those documents but what he could have done is taken the operative clause out the assignments and alleged it in the second and complaint here the allegation is why isn't that simply a matter of contract and you want to challenge the matter if you want to challenge paragraph to challenge paragraph two and then come forward with the proof and this could all be resolved about fifteen minutes time in front of a hearing in a district court just seems to me that's not just not a big deal so i don't  required it gives us absolutely no inkling of what kind of a sign was made and we don't think that even me or you can move for a more definite statement under the federal rules of civil procedure if you want to explain it further we move to dismiss and i think the cure there was the cure the district court granted mr brown which was to file an amended pleading to fix those standing allegations he chose not to do that and to stand on his complaint and in doing so he took a calculated risk that if this court supplemental authority it's called cortland and it gives a little more insight as to why the allegations have to be a little more substantial in this the supreme court has said in the second circuit is adopted and pretty much the law of the land that an assignment has complaints we have no idea what's alleged here we don't know if mr brown is a power of attorney to sue we don't know if he has title to the claims and he has an obligation in our view to plead more i think district court agreed with us and district court didn't and mr brown's claim he said please come back and cya ledger assignment in a more proper manner and mr brown chose not to do so counsel but for learmonth put learmonth aside for a moment it's a sister circuit so it's not controlling on us put that aside what's left of your argument given paragraph to which states clearly lifesaver is the assignee of the claims list of the individuals listed and brown is lifesavers assignee what more do you want again forget again you are setting aside  don't think that this allegation meets the basic standard of pleading assignment and i go back to the portland case out of the second circuit there the court said that if you are assigned a power of attorney you don't have standing if you're assigned you must be assigned title to the claims to have standing and it's our position at a minimum there must be an allegation that there's been a sign in the title to claims we cannot go back to to go back to judge smith's question what do you have in the ninth circuit that says that in the ninth in the ninth circuit your honor unfortunately there isn't a fulsome discussion of how an assignment is affected that's why we've turned to sister circuits in the third and second circuits we know that there are general statements saying that an assignment doesn't have to take particular form but then again you know that doesn't relate to rico and it leaves a lot of the questions in this case and unanswered we do have in the ok but i don't believe that relates to pleading standards or on i understand and so based on that authority the notion that rico must be expressed as sign the notion that i have standing as an ass i need to proceed one must have title to claims we just don't think that simon paragraph two does it and there was an easy fix to this the court did not and mr brown's case it allowed him to go forward it gave him an opportunity amend as to all of his claims and mr brown chose not to do so file an another an amended complaint don't bring back all of these claims in one in one complaint you got to bring him one of the time now if the district court had just said you've got too many the complaint is adequate but you brought to you piled too many things in here and he had simply separate them the single filing fee might have covered thirteen hundred new suits in the way that the district court ordered it by dismissing those the suit first and then saying when you refile it only bring on one of the time he's forced them to file thirteen hundred suits and for which they're going have to pay thirteen hundred filing fees so there's a very practical consequence and it sounds like it could be quite a bit of money to the order in which the district court did things well to answer your question  me also response mr selig mr recently said that the severance was not under rule twenty one we asked for severance under rule twenty one in our papers so we don't know what other rule the severance could be under and what the district court did is actually quite common it's there's examples of it in both the fifth circuit in the southern district of new york where as sign e s bring claims arising out of different transactions and try to slow to get them collectively in a single lawsuit and for reasons of prejudice and judicial economy courts have severed the claims and asked that the separate sets of assigned claims proceed in separate lawsuits so what judge had or did is not unprecedented we think it's the correct approach because we really as said out of the central district with mortgage cases each case is really an individual case so what we have here are thirteen hundred plus cases under you know before one judge  you're going to have thirty hundred summary judgment motions to your point your honor we have one filing fee where you're asking the court to preside over thirteen hundred some odd cases so we don't believe that judge had abused his discretion we don't think it even come close to an of discretion let me take you to the claim to the wrongful foreclosure because counsel suggest there is no way that on a wrongful foreclosure case which is for general damages that has anything to do was what judge hatter said out of child food well i believe one of the claims in child who was a wrongful foreclosure i know that's what he says he well child who talks about wrongful to a property to a title to a property he has to have an interest in the in the underlying property and so as a child who says that clearly and it's the only precedent on point and without an allegation that mr brown was assigned property interests we think that ends the non rico claims on the basis of child food what about the five percent that you adversary the interest that you had in the sharing claims isn't some of the documents well again your honor that's outside the record it's not pleaded and we would ask the panel not to consider that but if you would like me to go outside the a number of cases against mr brown in california and there are an enormous amount of problems with those with those deeds and to your point your honor we may be back where we started because there's a good chance that all of the property owners would have to be brought in and we have what i believe mr brown was trying to avoid to avoid this court's ruling in the sandy that you can't join plaintiffs who have mortgage claims arising out of different mortgage transactions in a single lawsuit so i think you have that issue right there potentially with the assignment of property interests which tell me why you think lemon is correct well lemon relied on get gulfstream and gulf stream sell that because of the direct purchaser rule there should be an express assignment of antitrust claims and lemon relied on streams and said that because rico was modeled after the  to another case out of the third circuit mccarthy the record eighty federal thirty eight forty two one thousand nine hundred six case and as plain as can be it says significantly antitrust standing principles apply equally to allegations of rico violations the precepts taught by illinois brick and utility applied to requote claims thereby denying rico standing to indirect victims so there is a very substantial analogy between rico and antitrust and in fact this court in not acknowledge the special problems attendant to assignment of antitrust claims citing gulfstream so we think that it stands to reason that this court should also conclude that is nothing if the fact that the  it's a it's sort of a poor analogy i think it comes down to the direct purchaser will your honor the concern an antitrust assignments was that congress want to direct purchasers and only direct purchasers to bring antitrust claims and that concern and that requirements also applicable to rico so why but that's the conclusion i haven't heard the analysis well the analysis is if you don't have an express assignment you have people outside of the sphere of the direct purchasers or there as siamese who may be bringing these claims that congress only intended direct purchase such that you keep giving me the conclusion that congress only intended direct purchasers i but haven't heard the analysis yet so i keep getting the conclusion but not the analysis well how do we know that is a pretty weak ok so it can't tell us what congress intended in rico so how do we know that congress intended that only direct purchasers or the equivalent of direct purchasers be able to bring rico claims i think you're going to get upset with me for stating the conclusion again but my best answer is because that's what our president says the president being one of them and you know a lot of cases out of the third circuit have analyzed this issue but that but that's it i mean you don't congress intended with respect to rico other than the fact that it seemed to pattern something after another statute i agree lemon doesn't discuss it in great detail but again i think reading the case law around why gulfstream decided that an express assignment was required in the antitrust trust context also applies in rico if you accept that the rico statute only applies to do if i understand you understand the reasoning of those cases it's it's because the damage been that's been inflicted on the market when we haven't and i trust conspiracy is is is going to be visited on the head of the first purchaser and then it simply gets passed down from there and there may not be that it is with the pertinent that the evidence is that the pert first purchaser is the one who's who suffered the injury is that also the case in rico i believe so i mean if there is if there's a racketeering enterprise and then you would naturally have other people claiming harm down the line but again the same problems that you have with antitrust arise namely how do you prove the damages damages could be very speculative so i think that's for that reason rico also limits the  harm the standing to direct purchasers and if i may say also your honor just to reiterate my point it's again our position that even if the court doesn't find it an express minimum at a minimum i think that there should be an assignment of all right title and claims and it doesn't necessarily have to say rico but it should say all right title that's an important word to cli all claims so that you could fairly read it to encapsulate rico but i think title is the key thing in my life why is title because the supreme court has said that an assignee of the century give the power of attorney to litigate as opposed to and that's i mean who's given if you said something like right title and interest for that be sufficient if it's right title and interest to all claims it could be sufficient i would have to see the language but it would have to use the word claims it would have to use claims cause of action something where a reasonable court could sit down and understand that possibly a rico assignment was because catches appendix a to the first amended complaint uses that language to use his rights title and interest pursuant to a wrong foreclosure involving mers and other parties well i mean i think there are problems with that assignment that i don't know if that could be read to encapsulate a rico simon because it relates to the foreclosure and eviction but again my point is that complaint is a knowledge it's been superseded by the complaint and decide not to attach this because it would make the complaint much much longer and they didn't they did a legit adequately so now they're now they're gone and it doesn't seem to matter what they do so either they've played too much or played too little we never challenge the first man complaint on the basis of the pleading of the assignment saying it was too detailed i'd like to see every assignment i want to be sure that i'm defending my client against a proper assignee we challenge that because we believe mr brown was practicing license without a license that's why he brought in mr jacobs we never we never intimated that the assignments in the agreements were far too long in the complaint was far too long again i would like to see those assignments because at the end of the day before we proceed with the litigation we want to know we're litigating against proper assignee sirrah am i correct that you would arguably be satisfied with this statement satisfy your argument again i would have to see it but i think that would go a long way toward satisfying my argument the problem here is by choosing to file this appeal and stand on his complaints mr brown took a calculated risk that if this panel finds that the assigned allegation as it is stated is insufficient and the district court was correct he doesn't get another opportunity to amend and we have that precedent out of the ninth circuit in edwards bremer and county where six claims were dismissed with prejudice the rico claim was dismissed with leave them and this court said that the plaintiff took a calculated risk because he thought that the the six dismissed claims were more important than the rico claim and when the panel ultimately found the district court correctly dismissed the rico claim he was given an opportunity men so i think that's the situation that we're in here three short points mr cicare get properly mentioned that they moved for rule twenty one the opinion doesn't mention anything about will twenty one i think that means that their motion was denied on  cortlandt it has is fairly they got the relief they were seeking right no i don't think they got separate because the word severance is not used in the opinion on court one i just want to point out it has it's a strange case it says you need not possess more than title assignments are not like carstairs not a piece of paper that says this is the title we move and i'm not quite sure what title to an assignment is i think when you've got a written document saying that you had something assigned that that that is sufficient there is no other free we don't have a registry of assignments anywhere finally i do want to go back to national mortgage security and judge to shamus state that permitting the assignment of rico claims on the other hand would not restrict rico scope which would serve to effectuate ricos broad remedial purpose he said that after he had conducted a very thorough examination of these claims based on and i trust law so to the extent that we have statements in the ninth circuit and i realize it's a district court it goes absolutely opposite of learmonth it says we've looked at these issues we've looked at how much we're importing from from the quite now and we've decided that we can assign so those are those are basically the the points i want to make you've been very kind with your time if you have any questions i'd be very happy to asked answer and i don't think they're for