defense to a non judicial action normally we think of affirmative defenses to lawsuits it seems to me you have claims here that might prevent them from foreclosing but why are many times help that if you don't first try to stop the nontraditional foreclosure you wave your defenses we have to record the system here one land court and one regular system and the key question for this in this entire segment we can't get lost in this issue as whether it's a claim or whether it's a counter claim three reasons why this kind of clay would not apply would not be applicable because for example the freer forms are damage forbes they really asked you how much money have you say you lost your damages for you does not really take into account these kind of equitable defenses and my claim was raise i recently found a very good  two hundred ten less law for all seven one six five three that in effect before for free it does not encompass is kinds of issues secrecy asian in this case is it your position that you want to undo the deal by giving back the money and keeping the property had as much i'm having difficulty figuring out what relief you're seeking that we have really in the end  what the crimes are my question is is any of that relief possible or which can you can you really borrow the money not give it back keep the money and keep the property that was refinanced decide but you're asking us to decide whether or not you've got damages claims which would clearly fall within in your view with free or or other claims and what what i'm having some difficulty with is looking at the facts of this case and figuring out how you could possibly get it clear that we had an opportunity to amend the complaint but we did not have the opportunity if you look through the accounts you see we're talking about well for example well count one we're the administrative remedy is not suited for these kinds of issues like in benson mutual mistake of fact and whether or not my clients have a and whether they can fulfill their our unfair and deceptive recession obligations doesn't go to the in that one that one claim which judge seabright allowed to stand and which was later dismissed by agreement and mr goodman says this morning that he was not afforded the opportunity to amend in fact in the conclusion of judge c price decision he writes it played us our graded leave to file a first amended complaint by december thirteenth two thousand and ten for the limited purpose alleging any possible based on conduct by chase after september twenty five two thousand and eight they did not seek to when he had the opportunity if anything in his argument the foreclosure under powered sale is unconstitutional there was nothing that arose independently of the acts of one vote and then going to judge it could is question if you look at the claims in the complaint every single one of them is for damages either actual damages or trouble damages there is not a claim in the complaint even the claim that's supposedly just for injunctive relief alone asks for damages does that make a difference you know if i understood the damages claims are are not viable under freedom but if you combine the damages claim with injunctive relief claim on the car to look at both parts of it yes i think i think you strip out the the midwest federal case decided by this court and the benson case suggest that you strip out the parts of a claim to to determine whether there is any residue that would be permissible under of fire riya but even when you do that here you have to do two things and one the midwest federal case teaches that you have to look for actions which are which provided a quote independent basis for a claim that is from what was done or not done by the failed institution and the benson case is that you have to look at the purchasing bank's post purchase activities and see if what's pleaded is based just on those on those activities here judge judge seabright found the complaint was wanting the six motion i think it does we got back to th if if this world a mortgage foreclosure as opposed to a non judicial foreclosure and your client was going into court to foreclose a mortgage and they raise affirmative defense is fraud and whatever else they raise would would those be liable defenses under the act if they were to argue that there was a basis under what you state law to prevent the foreclosure and that's what they're argu the merits so we have the boulder case in the first circuit rest seems to say because it's not judicial foreclosure you've got to run into court to stop it as opposed to waiting for the for them for t you why doesn't that apply well i think two things your first even if you accept the the procedural complaints about what judge what the midwest federal case in thirty six and a third says and what benson say is basically the same thing you have to be you have to be basing the claim or the affirmative defense on some conduct of the some post acquisition conduct of the new institution that's not what underlies this this case how good the objections are all of the objections now raised represent the the agreement they struck with and further that they were duped into allowing a junior mortgage on your serious terms which is described in the complaint but something from the after i say well and and there are there is a safety valve for people who are not given notice of the opportunity to present claims but on this record there is no evidence that th know there is no evidence that they have run grins tried and failed and there is simply no basis to speculate that if they didn't then if they had gone to the f d i c they would have had the door slammed in their face and received no remedy so it is easy your position that if it's unclear with the f d i c can give an appropriate remedy you nonetheless must exhaust and establish that they couldn't before you bring a lawsuit correct i think they have to at least try if they if that process i suggest it's not for the federal courts to say to to say well we know the f d i c won't hear you we know yes yes he will give you any relief regardless of the nature of the allegations that are made about the conduct of the underlying fa institution and so i would suggest that it is it would be inappropriate to on a record like they've they've presented here where there is simply no evidence that they there was  acquisition conduct of of the acquiring institution but to look at and perhaps grant relief based on the pre acquisition conduct and in that regard if i could just claim in front of the f d i c then i suppose you would have a resolution of the underlying merits of those claims without regard to whether the f d i c could could grant the appropriate relief which potentially if the i c might say you know user fees are great certain types of clients with respect to claims that arise out of post acquisition conduct they can make claims that provide relief above and beyond simply the situation or reformation as any other circuit adopted balled up here which do not believe so now no so but but again even if you even if you accept all the talk and say yes it's in the nontraditional context it's permissible for a bar were to come into court and seek some relief they have to be seeking relief based upon post acquisition conduct of the law that was my pinball duckie only post acquisition conduct i see the issue was the even if you get to the jurisdictional get over the jurisdictional hurdle then the question is was there in the in the complaint enough to justify determination that the action could go forward here judge seabright found that there wasn't should see a great gave them the opportunity to amend and they didn't and they didn't take that opportunity and so and not only didn't they take the opportunity to vent but they've never once offered a word in defense of exactly the same situation you got a complaint that was found to be wanting you've got a party that hasn't bothered to defend that complaint and you should even if you accept all the fine jurisdiction you're still left with the an appeals from ruling that the complaint is inadequate to to make the claim to sustain any claim against if you morgan chase and i would ask used to recognize the failure to present properly preserve and present that issue with respect to the adequacy of the complaint and just say that the case is dismissed ok thank you argument was that there was no proof that chase ever got the mortgage and that runs through all of our claims that they were pursuing a nontraditional foreclos the second point i want to make is that the four year law is not susceptible of handling other than money damages here we have equitable remedies i'd like to call attention the court to that case and this still in the us is circuit in arizona rhinestone versus enterprise bank and trust to two thousand and twelve westlaw one six eight one nine eight six this is the best analysis witnesses and documents but they have no ability quote to set itself up as a compulsory neutral factfinder orbiter disputes between others the free  process cannot handle my client's claims ok thank you very much