good morning i mean please the court my name is richard engineer represent the would be the second claim for relief or violation of the fair debt collection practices act of the f t c p s a and the reason i believe it's the strongest clear case for relief sixty ninety two f subdivision six and let me just let me read it to you if i may basically said that it's an unfair unconscionable means to collect or attempt to collect a debt by quote taking or threatening to take any non judicial action to affect disposition or disablement of property collectors because they were attempting to enforce a security interest namely by for closing the exact situation because i'm looking at sixty ninety two a six f which is the definition of debt collector yes and it seems to exclude any person or include any person collecting or attempting to collect a debt but i'm sorry let's see i'm sorry this is what it is excluded if it concerns  debt that which was not in default at the time it was obtained by such person ok oh does was opted off when acquired was awkward to service or on something that was a debt at the time that it was there was in default at the time it adequate yes it does not please i'm not going to say it is not plead exactly went into the when he went into default i think i'm sure the court understands the notice of default which was issued in june two thousand and fourteen was not the start of the default the default occurs when mr petrovich misses a single payment that obviously occurred some time before the notice of default was issued ours which discussed hoa and said whoa talked about other provisions of the f t c p a and said under these other provisions which are basically certain subdivisions of sixty ninety two e a  attempt to collect a security interest on real property is not normally debt collection but then in dollars a court said this would be a violation of sixty nine hundred two f subdivision six so dollars actually makes a distinction and while i'm sorry what was the difference between gowers and ho in the in the hold the court and anything mr kotok about sixty ninety two sue under sixty ninety two f subdivision six dollars dollar says that the difference in this case from from hull was that nation star which was a which was the service or in dollars threaten to take non judicial action starts the formal foreclosure process in the california law but that's just the ordinary process was there something different that they didn't know they they probably sent various collection notices and they also issued a notice a trustee sale  overrule another pal's we have to find a way to reconcile them or it has to go on bombay the way the way you reconcile it your honor would be to say that ho did not deal with sixty ninety two f subdivision six and ours did dowries itself points the way you deed of trust only if it's acting on behalf of the actual owner or successor to the lender of a deed of trust and we allege that for a lease for two reasons auckland is not acting on behalf of the real owner of the d alleges that these assignments are void because at the time they were made to be a signing party sand canyon had no mortgage interest to assign it had gotten rid of them all  the chain of time exactly under sixty ninety two f six subdivision and under the under the authority of the doris case and you know getting back to the court's concern again doris case only helps you if you can meet one of those so divisions and that's why i ask you which one you're relying upon but essentially you're going back to challenging the chain of title yes but sixty ninety two f subdivision six subdivision a allows us to do exactly that i am relying on sixty ninety two f subdivision six subdivision did you ask the district court for permission to amend the complaint yes actually if you look at page zero two of the record the complaint itself includes a request for leave to amend if the district court found any fallacies and i believe mr perkovich in his opposition to the motion to dismiss requests leave to complaint does not state a claim for relief first and foremost california law bars the sort of preemptive actions that are designed to make the the beneficiary come into court and prove that he has the right to for l it doesn't really intersect at all obviously the fair debt collection practices act is a federal law and we're generally talking about state law claims so as a general matter you can't bring rougher closure dekel tor well i would just point out first that this is a very new theory this is that you know yesterday afternoon was that the first time i actually was aware that they were going to present this there it wasn't presented in the district court they didn't present it in their closure so the foreclosure could not proceed basically the the lender and the case nation star didn't produce documents in that mediation showing the original loan file so there and that explains as sort of the beginning of the dollars opinion at nine sixty seven sort of explaining why the lender could not non judicial foreclose there you had a very specific reason because nations dirt did not comply with state nevada state law so therefore could not go forward with a non judicial foreclosure until it successfully completed this mediation program is that they reckon it's not that nevada i apologize  but i think that that's the key to understanding dollars and dollars you had a very specific reason why nation star could not proceed so that mediator had sent out a letter saying i'm not going to issue the certificate  in february of twenty fourteen then after that nation's star took several steps it sent letters demand letters it may telephone calls that threaten to take steps to enforce the security interest here by contrast we don't have a viable theory showing that the loan was not in fact assigned to deutsche bank we have a legal conclusion that the assignment was void but none of the facts alleged actually support that the primary factual theory in the first american plane and its pleated was that this assignment occurred after the securitized trust closing date and therefore the assignment was void because of that well we now have a growing body of case lost a number of published california court of appeal opinions and a ninth circuit issued a published opinion saying that a post closing transfer does not render the assignment void merely renders it void a bowl and if it's only void a bull the borrower does not have standing to challenge it the basic idea is that you know b don't have standing to say there's been violations of this pulling and servicing going that governs the trust only the trust beneficiaries could say hey there's something wrong here when trust beneficiaries can say that we  approve this transfer that would mean that assignment was voidable so let's say there was a post closing date transfer the trust beneficiaries in this case can say ok violated the terms of the billion servicing agreement but we can still accept that loan complied with and that means that the transfer was voided rather than voidable now really there's no specific facts to back that up but it also gets you back right to the same same conclusion that a number of courts have already reached that that this is where the appellant has placed all of his eggs today so if so if i understand the way that you think the dollars as distinguished is the problem and there was that is that nation star invoked its foreclosure rights which  intitled to do which is why in dollars we affirmed all of those claims based on claims similar to what was right were raised here but then went into this mediation program and failed to obtain a certificate of of foreclosure from the mediator which was a prerequisite to being able to exercise his foreclosure rights in the that that that's exactly right and so when it continued to talk threaten to foreclose the court deemed that non judicial exec like not judicial steps  and took it under under sixty ninety two f six that's exactly right the party's going into this mediation and the nation started not produce the original loan file in that mediation and even says you know then on sept february twenty fourth when the mediation office sent the parties a notice stating that based on the mediators recommendation it would not issue a certificate for closure then after that nation's star continued to try to attempt to f trustee says those are attempts to collect a debt that's basically are just attempts to enforce a security agreement so it's not a violation of the fair debt collection practices act  so i see i might my time is winding down a little bit that might might engender points this is a this is the preferred closure lawsuit so number one since there's been no foreclosure there can be no more foreclosure claim but even more broadly california law bars preemptive suits unless there's been a specific fact a lead showing that the beneficiary doesn't have the right to foreclose and we don't have that here what we have are a couple of the basically the main allegation in the complaint the first of many complaint was the post closing date transfer which has been dealt with in a number of published case we also had this this theory that the twenty fourteen assignment to be detroit trust couldn't possibly be the way that the loan was transferred and that's absolutely correct and simon to be to trust is not the way a loan is transferred that's a distinct issue from when the loan was transferred a lon or negotiable instruments there are transferable privately there's there's no requirement that each time a loan is is transferred around privately from one hand to another that there's ever any public record of this i'm a do you trust so the fact that there was  no citation when they made this argument in their brief no citation to the record there is no allegation in the complaint that the assignment evidence to a prior transfers of some years before allegations at the assignments assigned purported to assigned the loan when they were made have to be taken as true i might add the assignments themselves don't talk broader than that but let me first of all point out the dollars from what i can tell and i think counsel so conceded the point was a pretty foreclosure case that found the cause of action under sixty nine to six the other the other basis i think if you look at paragraph sixty three of the first amended complaint in then exhibit c to the first the many complaint is the assignments were done but sand canyon corp which was the successor to option one mortgage the original lender and the pulling so no it is it is actually saying that when the assignments were done there was nothing to assign cassandra canyon had given up all its mortgage interests and we actually attach a decoration as be that but i will point out that they argued in their brief that california does allow an exception to that rule for specific factual allegations of a break in title and we certainly i think presented such specific factual allegations and that is supported by california case law they go home sick and glascock uses but more to the point under sixty ninety two f which is a federal statute it applies to threatening to take that seems to invoke right if there's you know if there's no right to possession of a property claimed as collateral through an enforceable security and yes and we are we allege there is no right to enforce the deed of trust because they were not validly assigned the deed of trust so everything comes back to the assignment quests it does including your sixty ninety two ethics actually said exactly in that sense then you're sixty nine hundred six argument isn't really new no it's not it is and if you don't and it all turns on how we view the whether you whether that is whether the your challenge to the assignment is a question is that right void or void the enforceable security interest terminology under sixty one to f i think would be a matter of