washington mutual did or didn't or should or shouldn't have told her about her basically getting two women a one million dollars house that she didn't couldn't pay for for all those years whatever they did or didn't tell her to get on the loan she subsequently when it was modified to give or break ratified the loan and that means we don't have to look back and see see organizing facilitated the sale of the entire bank to chase and that's in the record now consideration had gone both ways she'd given up her right to seek legal redress against warming in exchange for better terms and then that long subsequently was salt or conveyed to another up in exchange for the promise that nichols gave chase to not sue nothing that is the answer warmer gave nothing to nichols chase modify the loan then modify the payment t so there was consideration and pretty between chase and nichols but not between the calls and moment now so my way of looking at this case so far has been to put this entire thing aside and figure out if your client could ever win this case says that they've been arguing that you can't win on the merits regardless and once they did that in their answering brief and urged us to affirm on an alternate ground you barely even responded in your reply brief why should we not agree with them that your client just loses on the merits right st of all  i did respond to it but but you correct to say only on a couple claims she has like ten claims you talked about maybe a couple and only one element and she has to be win all the elements of all those claims so if you haven't shown us she's going to win any of these claims yes you're on the discovery st of all i don't litigant asked the court for more time to do to conduct a deposition of sean o'connor who was the agent who persuaded her to enter into this loan in the st place he's the central figure in this case she was having trouble getting his some more time given her process you didn't appeal that ruling no i did not appeal that ruling but in terms of addressing your question but it i mean why is there any reason to think if we agreed even if we sent it back discovery is over so that  getting taken you didn't appeal that we're still stuck with this issue and you can't win on the fact that you have as far as i can tell i disagree there are several individual claims well the st the st point i made is that you don't need to affirm on other grounds you you that she should receive that earlier so she could have given that the purpose of the lies to provide borrowers always give everybody the papers on the day of the closing in the people and the people that signed the papers have a limited time to revoke that is correct but in this particular scenario the terms that she was the terms of the contract that she was led to believe they were going to be there were not but she knew that and she had three days to revoke right right however this is back in the reckon this in the sealed portion of the record that goes to her mental state at the time and washington law permits revocation of rescission of contracts where there's not a meeting of the minds when there is not an understanding of what the actual terms  i can't see why someone who finds a contract in is not known by the person they're making the contract with to be incapable of making the decision and do what they're doing sonora such as this one there hasn't there wasn't a meeting of the minds she was in the right state off mine to sign this contra in the st place the party on the other side of the table know that they had certain elicited that information during a an agent for washington mutual and he was very aggressive with diana nichols diana nichols who was intended and this is in a deposition in the record intended to sell her home and live in a smaller one she confided t i'll give you a loan he gets his fee and you can get a one million dollars and here's another thing that's part of the record she didn't get a one million dollars she was nine hundred thousand dollars in debt because of what had happened in her life she was months behind in payments she was paying she was nine hundred thousand dollars in debt because she could never afford a one million dollars house in the st place and she'd never the less gotten a loan so she could live in the house she couldn't afford and it was on credit that i don't think the record reflects that i think especially the c e o part of the record beginning in two thousand and four i believe or before all of this happened she was in a position where she had to take she had to pay for her daughter to receive special treatment because of what happened to her with her family and there were a lot of other problems going on she she was diagnosed with p t s d and couldn't work for months and this is all in the record as well so the laws don't  money to troubled individuals no that is not what the law says but when there is a significant issue regarding some with mental capacity to enter into a loan and the bank and knows that then that then there is a problem washing law provides for to the waiver of her claims against washington mutual and the ratification of those terms and it shows friedman has indicated even if that modification even for some reason that modification went before the court were properly relied on here the summary judgment record did not gravity is not a relevant question because waiver and ratification can be affected outside any contractual context i read or a letter with no consideration at all can constitute whether the russian supreme court so held in a case called pen around a residential mr nichols any consideration at the time of the modification is they weren't part of that agreement has no bearing on whether there was a waiver ratification so so on that issue we don't believe that the privy issue is relevant at all we believe that the fact that mr nichols that the man's nichols entered into that modification specifically affirming and i'm going to quote the modification at page two thousand one hundred and thirty eight the loan documents are composed a valid binding agreements enforceable in pointed to anyone who owed her a duty of care that would that is required to for a negligence claim washington mutual and shot o'connor of the employee of washing your two will have no night business relationship with her and ordinary business relationships do not ordinarily duty of care her to claim dealer requires they would if he tripped over the rug and hurt herself because the rug wasn't in the proper place a fair enough if there were some special some special circumstances but the before the loan is funded the closing was held six days before the loan its loans fund and she had that she she could have at the time decided not to enter into it she could she had three days to decide to rescind she decided to proceed anyway and this was at a deposition she acknowledged that she decided to enter into this alone because she needed the cash going to come out of it and she understood the terms because the attorney at the closing explained all those terms to her there was no dispute that she knew what was in this loan at the closing there was there is some question about what was told to told before her and were not i'm not here to say that mr o'connor made all the proper disclosures but all the proper disclosures for made at the closing and there's simply nothing in the record i believe the title company but he was the one at the at the closing who explained all the terms and had an acknowledged as deposition that she was that she was upset and we're not we're not disputing that but but he also acknowledged he also testified that she understanding those terms indicated that she wanted to proceed because it was because she believed this loan is going to help for her thought for her going forward so so given all of that and the right there was two claims are unconscionable already and arrests but those are defenses to the  by the district judge or this court kind of firm on i don't need evidence that supported by the record so it's our main argument is that modification is sufficient grounds to support what the district court did  in the event that this court doesn't choose to rely on a modification we believe that the record as each of these claims is quite clear and that it's within this court's discretion to look look talk turn of grounds as long as they're supported by the record we certainly wouldn't we're not asking the court to draw factual recognized that when when there are other alternative grounds for firms that are presented by the record it doesn't have to you know send the district court through the additional exercise of considering those grounds if there's if the out ultimate clear that's all i have but i'm happy to ask answer further questions of the balance ok thank you counsel we'll give you a minute for about oh thank you very much thank you specific claim it's to plead in order to preserve her rights now in washington there there is a provision of law that says if there is no meeting of the minds and there's not an on the standing of what's going on  closing or when someone signs a contract there's the burden on the plaintiff to show that that was the case it could be either fraud or misrepresentation now that case is excuse me five because there's just no legal basis for saying that someone can give up their legal right to sue for nothing especially when we're talking about a one million dollars loan so she gives up her right she cannot give up her right to sue and get a one million she didn't give up a one million dollars she received a one million dollars exactly but the point is that she gives up her right to contest the validity of that contract or she's happy to keep the litigant issue and she at any rate i'm trying to figure out what even what a pro se litigant who was upset would not understand excuse me i can't figure out what it was that she it ought to be reminded i don't even know about taking advantage and she got the money even though she wasn't paying for well the loan means she's really not paying for the money what she's paying for a month that's incorrect she was paying between  less than the interest yes she was paying between three dollars to five thousand dollars a month and by the time she stopped paying in two thousand and thirteen she had paid back half a one million dollars and the lot was still a one million dollars that is a factual issue that they structured the contract in such a way where he says there is it's possible that this could be natively amortizing however it was structured in such a way that there was no other way for it to be then negatively toys ing and this is such a huge issue policy why speaking in connecticut where she lives that they banned these kinds of longs for that reason the  recommend that this case should be reversed and remanded to the district court because there is no legal basis for the loan modification argument as a waiver defense at any rate it was asserted too late in the knew about it even before three each side will have fifteen