pleas court my name is matthew carter it counts table with me as kristina miller we represent carrington mortgage services there are similar issues in this case to the prior cases to be heard by the court this morning but there are some very notable differences and i'm going to try and keep my argument to those so on the st issue that the court wanted argument they asked about whether or not there was unfairness oppression of rather justify equitable relief under nevada law we've talked a lot about shadow canyon this morning i want to clarify something that was said in the st case about unfairness and that is that where the disparity between price and value is great there's slight evidence of unfairness it's a very low quantum of evidence and in this case the disparity was just amazing how many cases i have found that in fairness your honor i am may have gotten remanded in state court it was wells fargo or us bank i know that doesn't help the court these are all called wells fargo or us bank but i can't recall any explicitly the most the most  definitive guidance on fairness is the footnote eleven of shadow canyon which talks about the lack of notice and there's some other examples that are given in there now the other cases that the court has had this morning have all been about lack of notice this isn't one of those cases this is a case where we actually have a tender this is the case where my client's predecessor uninterest bank of america sent a letter and a check for nine months of assessments that's five hundred and three thousand five hundred and three dollars and ten cents other components of the statute right well yes your honor in what might my client was going off of was the language of the statute did you have to represent in the district court that only nine months was owed in other words that there weren't any maintenance or nuisance abasement charges well i believe we conceded that that would be part of the super priority lee i don't know where you considered that but did you ever i'm trying to figure out whether there was really an issue of fact or whether you just kept saying we paid nine months and we'll only have to pay not nine months because the other is what i see over and defend be always exclusion of all fees and costs set forth in the payment to man they merely presumed that the amount set forth in the payoff demand included more than the super priority lien portion your honor that  is i think this is going to come down to burden of proof so i want to be very careful about this that's the disk basis for the district court order right couple that with his statement at twenty five dollars wells fargo's e twenty five  f argued in the district court that it was in title to a statutory presumption that to clean title statutory presumption that the that they title was clean and then that in context with the district court judge saying here's the thing you have not come forward and shown no dispute that maintenance in nuisance abatement fees would have been included in that particular lien i don't think he came to any particular decision as to what any particular line item of that ledger came to know what he said is that you have the burden  hadn't met it well well to that extent your honor we produced the ledger and we showed what the legend was and we compared with the statute and the ledger when put up with the statute there is only really one way to construe that particular ledger had there been made i don't know that that is counsel and i know i have looked in vain for this very point so i just offered for you we'd look at the letter and as one kind of an inscrutable entry a twenty five dollars entry that says  i think management company feeling what is that what management companies your own age always generally don't run themselves talking about generally i'm talking about in this case and i'm asking a very specifically why was the district court wrong that you failed to overcome this presumption please because the management company is something different than the way that the people that actually run the day to day business of the age weighs in this particular interest on the record what you're telling me now is in the record your honor i would have to go back and i'd have to find a particular site for you on this particularly where tendered yes so the district court was wrong the disappoint was wrong on that and by the way i don't believe anyone disputes that there was more than the super priority lien included in that ledger payoffs you know the question is whether or not you have to pay more than the nine months are we and bank of america and its lawyers got together and they double and triple checked and made sure comparing the statute what do we have to pay because it wasn't a matter of we're just going to do nine months and that's it it was comparing the statute be a pretty good way of saying because there's nothing else wrong your honor says yeah our position is always that those would have been included but there would have been nothing else apart from the nine s in this case which was why the lawyers and bank of america got it complementary never said those words exactly and therefore perhaps confuse people and there's a point says you never a contested specifically that you didn't know the rest of what was on this letter and to begin to be you know fair to everyone involved your client continues to take this position that it only had to pay nine months without going into this point that person is raising on page twenty nine dollars is the st time i see any mention of at most you say there's a question of fact that's the st time it's  statutory presumption that basically that the notices are correct and that everything in there is correct those are not ironclad set in stone as a matter of nevada law either it was either the shadow would or the shadow canyon case i can't remember this is also not briefed on appeal  and again i apologize this was not made clear for the court but what a supreme court has said that you can't just simply weaponize this part presumptions into say ok well those are in there there's no more evidence but anything within arlington west sanction pretty much exactly what you did without invoking any presumption in other words in arlington west it seems that what happened was pretty much exactly what happened and thing court says arlington west doesn't what is that twenty five dollars other twenty five dollars fee a minute i don't mean to belabor the point but that's right let me think suppose you're right about all this what we what is the remedy what do we do well the remedy would be for the court to equitably set aside the so i assume it's an issue that would have to be would have to be addressed by the district court there's really two possibilities the one that would generally happen is if one had equitably sort of unwound the sale to the extent that we had made the super priority tender the sale would then be subject to my client state of trust i know that the nevada supreme court on at least one case and that was a notice case not a tender case but the nevada supreme court has said the sale was just void and everything's back to the way it is before  thousand dollars yes your honor that we would have the deed of trust and we would have the ability to accelerate that would have the ability to foreclose and so now there was this woman the person who bought the house and thought she was paying seven thousand dollars essentially is going to pay under sixteen thousand dollar just christians question about the burden of proof because that's where i believe this case actually lies now joins me and had it right before the u s supreme court actually talked about the very issue of burden of proof for presale point what about arlington west well arlington west is also a decision that  arlington west talks about the generalities of gender you know it doesn't i just read the paragraph in which it's extremely specific and exactly parallel to this right but in that case it was argued number one that there were no abatement charges they did agree in arlington was that those pieces would be containing what the court says is the letter did not indicate that the property had incurred any charges right do you ever argue that in the district court that there aren't any maintenance or nuisance abasement fees owed in this case will my driver know are you what we argued was that there's in the context of the fact that they're in the statute there's a super purge and we understand that we understand the law we're trying to figure out as a matter of fact right whether anybody because today i can't tell whether that super priority portion was satisfied factor it's not the judge said right that that the i think in context very clearly thought that the lender hadn't overcome its burden correct if your position is that the ledger shows no nuisance or abatement fees why wasn't the district court incorrect about that letter yes well that and they also have whatever value was listed in the notices but yes ok so we need to know why the district court judge was wrong in deciding that they didn't overcome the burden please he's not wrong he was absolutely correct that the bank failed to overcome his burn out you just said that the le ledger did not indicate that the property that's what it says i know for this case there's any evidence of that indicating where you forgive me did you say is or isn't there there is no evidence presented in the record or argument by the bank that there is not an abatement charge somewhere in this value well they kept saying i mean when they kept saying we owe the nine thanks a and they recognized in their pleadings that if there was a nuisance payment charge it would be part of their nuisance abatement charge but that is what they're saying oh and once they say we know that if there is a nuisance space trial we have to pay and then they say we only zero for nine months there are looking reality in the face which is this piece of paper doesn't have any new and specifically they cite to the very statute which governs it one hundred and sixty three thousand one hundred and sixteen and what they say in there is it's a portion of the lien provided by the association is arguably sr and then they go through a discussion entirely surrounding the fact that it is only nine months of assessments inadequate why was it inadequate because the burden of proof lies with the bank and i get that i get and i'm i raise that i'm certain that we have something versus nothing so why didn't they beat me they burned a pro well there's there's portions of the lien that are beyond this just like just me and found that could potentially be abatement charges and he doesn't have to he didn't identify and sometimes are inadequate to show what they need to show it's got to be because you think there's something and then there's arguably in the super priority portion that was right word satisfied by the check that they sent tonight what is it is that what i'm saying is that the check they sent is equal to exactly nine months of assessments i understand that which means that if there were abatement charges and they fail to demonstrate that their payments satisfy those abatement charges and that actually comes from the resources group decision by the nevada supreme court where they talk about the matter and their warrant i mean at least they have evidence that there weren't and you have no evidence that there were i don't think there's evidence demonstrates their work says this isn't necessarily encompass everything the association may mel three thousand so much money in this letter and so up to three thousand so much money right so it's supposedly represents everything they're asking for well there here's here's one thing that we can talk about is the fact that there are collection costs included in this particular ledger ok costs if they relate to abatement then they are collectable as part of the super priority portion so how do we know that we say this is the problem is that we don't know that but the do you even argue about that when you're briefing this is new news well these are these are arguments that have come up post these these risks really are a little bit difficult i'm going to stop but the difficulty is you everyone can see the basis for the district court's ruling and so on appeal it is time to be raising those arguments i understand i understand and i want to i want to point back to the resources group decision specifically talks about whose burn it lies with and what they actually have to prove and the two factors that come down to a presale payment are in amounts of fishing to protect your interest and that it was delivered before the sale now obviously the issue here is whether or not the amount was sufficient to protect their interests and you know in that circumstance very moment in resources group the failure of one of those factors of held the sale as a valid sale and extinguished whatever interest that person was trying to protect and i was a concept and resources group similar concept to judge me decision here where he's saying abatement charges have a super priority portion and bank you have not met your burden to demonstrate there weren't any and that's that's really the basis for my decision but i would i would like to just briefly touch it if you're inclined to consider there being an issue of fact then i don't think that arlington was dictates the outcome where in the bank would ultimately win on appeal i think what would have to happen is that it would have to be sent back down and here we determine whether or not and i'm sure that even you can you want to do that honor i think what what is come to light mainly from from the response is the s f o r is insisting that my client prove a negative in the district court it's take each and every line item that is  away to make it very clear that it is newton's nuisance abatement or maintenance in that letter the reason being that my client needed to properly calculate what the super priority lien amount would have been and that doesn't really count so that didn't answer just christians question which is in theory would that be part of the super priority and you seem to imply that the answer is yes there is that's correct you difficult to sort of go back and reconstruct these things because it's funny when you get to cases on appeal and they go through lawyers in the they go through briefing and sometimes these issues become clearer and i think with the benefit of hindsight all  of us ms miller mr martinez myself could say oh yeah absolutely this should have been discussed bill in the should have been really fleshed out because that's going to be the issue later i think now with the benefit of hindsight we say well there just isn't that much in the record it's kind of there and everyone sort of you know glancingly referred to it in the court but put these lines in the order that are now very difficult for us all to deal with and i don't envy the court having we do there a living yes really yes ok thank you thank you very much argument the case of karen mortgage services for says as a foreign investment pool is submitted and we will take a short break thank you