supposed to be a precursor to discussions regarding modification of appellants loan liabilities under a commercial mortgage held by the a power and  i think a brief version summary version of our argument is contained in the in the record in our objections to the hordes proposed ruling in the record at pages two through five but had not engaged in discussions regarding modification of the loan and if you look at the oral argument i specifically referred the court paragraph thirty to  not have been the reason that the district court gave but i have the same question is just such in wondering whether the p m a is even in forcible contract when the terms are so and indefinite you do  in the first amended complaint as part of your i think the fraud or unjust enrichment decision claims that the benefits to us cliff were illusory so given the fact that we have the p m a we can we any time and negotiations are even required they may engage in negotiations no duties created neither party is obligated that's repeated over and over again in the p m a i mean i think i think the clear it's not express it's certainly implied that they're going to participate in discussions about modification  where the knowledge of those individuals is exclusively within the defendant is not what the defendant certainly knew and doesn't know today who participated in these negotiations regarding the pre negotiation agreement so it's something that would be drawn out in discovery if we were able to conduct discovery and find out exactly who the individuals were that were represent me if it goes beyond just the question i tend to find the appropriate individuals because as you indicated some of this might be and undoubtedly may be uncovered in discovery but it's really the plaintiff obligation to plead facts giving rise to an inference intent to not comply when when those representations were made and that's that's where i see the complaint falling short it's a bit make as to what happened during the between the time for example that the p s a was negotiated and the time that litigation was initiated and then the receiver was appointed and where some of these actions as defendants argue may be initiated by the receiver me i still have questions reading through the affront based claims as to exactly what happened so it's difficult to discern where the  law and the loan documents and the obligations that appellant had under the law and we expect and and given the opportunity to a man would have alleged that we expect discovery that show that the reason why that promise with falls and the reason why no such discussions ever occurred was that defendants had concealed from plaintiff that the mortgage was actually packaged in a commercial mortgage backed security and the servicers actually had no authority to engage in a sort of modification discussion without getting approvals from the actual participants in the mortgage in the commercial mortgage backed security so we expect to find that there was never any intent whatsoever to actually engage in any meaningful discussions regarding right now i understand that that's what you're going to be arguing but i'm not sure you heard the answer to my question are there just small factual allegations that you would be able to plead are the beast facts you expect to uncover through discovery aren't they factual allegations that would go into an amended complaint if given the opportunity to mend well i think both i think it's something that would go into an  complaint to show that vishal pled facts as to why the promises that were made were never intended to be carried out  and i think discovery will show that there was never any intent my clients have alleged in the first of many complaint that there never were any discussions so we know there weren't any discussions the question is discovered that they never actually had authority from participants in the mortgage backed securities to engage in any such discussions and that's going to be what we expect to review in the story and it's also something that we could set forth in an amended pleading if allowed to do so as we alleged in the first event a complaint our client heads many obligations that it fulfilled that were a part of the  negotiation execution of the pre negotiation agreement and our client promised and allowed environmental assessments to be made on their property and our client also released liability for in particular insurance claims that were owed to them from an insurance claim that had been recovered by the so we did suffer detriment as a result of the pre negotiation agreement and we have substantial damages as a result of the breach of that agreement and whether  i'm sorry tell me again what you claim was a breach not not discussing the breach was not discussed not even discussing not even discussing read from the agreement here but that's not what the agreement says the agreement specifically says the lender agrees to discuss are your liabilities under the loan documents with you that's the purpose of the pre negotiation agreement is that there if you sign this agreement they're willing to discuss these modification terms with you they don't make any clear promises in the agreement that you're going to get a modification i think three that they're going to discuss it with you actually they we expect discovery to show and certainly in an amended complaint if we had been allowed to do to a man we could have pled that they know you're somehow alleging they never had any intention to do anything about this  h i don't think they had authority what we didn't know at the time but learned later was that our long had been sold into some tranche of a commercial mortgage backed security that had multiple participants but actually controlled everything to do with how our loan was service and the people we were dealing with actually had no authority to modify or loan or to engage in discussions about modification of  that's what we're getting at that's what we're expecting to prove and i think that's the reason underneath to why we never had any discussions and they instead went immediately forward with appointing a good morning bill baron for the lending parties the problem with west cliffs argument is that the loan contracts and the peony defeat all of their claims the p f a as the court noted said that the lending parties were agreeable to discuss issues having to do with curing the default on the loan the peony did not state that the lending parties would agree to discuss the two points that westcliff it said it wanted to discuss regarding the use of a reserve negotiations so nowhere does the peahen a obligate the lender to negotiate the specific points that west cliff barges or any other points that the district court was correct that there was no breach of contract and westcliff didn't plead that it tried to discuss curing the default all the p and i talked about is how it was westcliff going to cure the default that westcliff had decided to wells fargo would discuss curing the default so it's a binding obligation to enter into discussion no it's essentially well i mean then what's the answer my question did in your view  obligate wells fargo to do anything under the contract now would permit it could be result in a breach if they didn't do it no it permitted wells fargo to engage and negotiate loans with your drink they had no obligation under the contract that's right so illusory benefit was that westcliff would have an opportunity to cure the default which they did not do when they had their opportune anyway they did that's right and that's the point also they're not getting anything on the agreement that's right but they also have no obligations under the agreement defaults then all of the obligations of the loan documents still apply and all of the remedies of the lenders and the loan documents still it was true whether you signed that agreement or b n a or not anyway right that's right but the point of it is to prevent this of the point of it is that the lenders will agree to talk about curing the default but in exchange for that they are advising westcliff that westcliff can't think that the lenders have implied that they would care the default less west could couldn't think that the lenders had agreed to negotiate any changes in the loan documents and it also advised contrary to what westcliff has just argued the p m a advised westcliff that this loan was handled by servicers it advised westcliff that the service the agents of the services and the officers that westcliff was dealing with had no authority to agree to the changes and that the lender didn't agree to make any changes  contract claim and their fraud claim is that the loan documents defeat any claim for damages and that's a reason that leave to amend the fraud claim shouldn't be granted aside from the fact that westcliff hasn't pled any fraudulent discuss specific points having to do with use of tenant funds and late tenant payments and the amended complaint alleges that the lenders refused to discuss those two points and there was an allegation that's what they're arguing that somehow the lenders were driving less cliff in an undertaking and westcliff was undertaking additional obligations it didn't already have in exchange for this agreement to discuss those two points well first of all the  not and then if they were drawn in what's the harm from the front assuming there was fraud well there wasn't fraud but there can't be any harm because each of the remedies that was described in the p already agreed to under the loan documents for example counsel argued that p m a agreed to waive a claim for ten thousand dollars in insurance funds under the piano but in fact section c four of the deed of trust that was part of the original loan documents provided that the lender had the right to those insurance funds and that's in the record at one twenty eight westcliff wanted to fall to last any claims of those insurance proceeds as provided by  and that's in the record at one thirty one to one thirty two westcliff also argued that the p m a required to pay the servicers attorney's fees but in fact section thirty one of the deed of trust required westcliff to pay any and all expenses incurred by the lender in dealing with westcliff that's at page one forty seven of the record and a page one thirty nine paragraph thirteen of the deed of trust to find the lender to include the service or us so the deed of trust already required westcliff to pay the attorney's fees it's now arguing about in addition the promissory note in section nine required westcliff to reimburse all of lenders attorney's fees incurred in dealing with this transaction and how do we get to looking at all of these documents i'm assuming these were documents attached in connection with the motion dismissed yes they were but we'd have to take judicial notice to go beyond the allegations of the complaint right and that's that's why west not include the contracts with the complaint of the amended complaint because the loan contracts and the peony defeat their claims and the district court did take judicial notice of these contract terms let me ask you about  the unjust enrichment rescission claims that are based on the allegation that this is the p m a was an illusory contract why don't those claims go back if we think that the p m a was not an basically the the bank wells fargo induced them to enter into the p m a that gave west cliff very little benefit but gave wells fargo benefits such as  giving up on the insurance fund the ten thousand dollars on basically allowing for environmental assessment in media appraisal inspection of the building and so wells fargo took advantage of all of those provisions and confirm that there was a lot of equity and then pushed them into litigation receivership right you're saying that all of that wells fargo could have done anyway that's right upon default all of these consequences flow from default the provision for environmental assessments is in section twenty four of the deed of trust in the record of page one forty five it permitted lender to enter and inspect the property at all reasonable times and then upon default section twenty seven of the deed of trust the event of the fall lender had the right to enter the property conduct any repairs maintenance or any other operations that lender considered necessary the appointment of the receiver was provided for a point of fault as a matter of right and that is in the record at one forty three in paragraph twenty a sex of the deed of trust so each of these remedies that was quick is claiming unjustly enriched the lenders in fact were the consequences of westcliff decision to default on the loan and the peony didn't add any rights for the lenders other than were already in the loan documents the other reason that west westcliff filed for bankruptcy protection and in the bankruptcy proceeding westcliff sold the property and westcliff controlled the sale subject to the bankruptcy courts approval and westcliff admitted that it sold the property for more than the appraised price and that is in west cliffs petition filed in the bankruptcy court to approve the sale at three twenty six lines fourteen to sixteen so westcliff so itself sold the property for more than the property had been appraised for and then out of those proceeds wells fargo recovered part of the amounts it was owed and the lenders recovered part of the amounts they were of but no more all of the recovery that the lenders obtained was provided for in the loan documents so  if there had been an inducement which there wasn't and if there had been a breach of contract which there wasn't westcliff couldn't amend its complaint to state a claim for damages of any  was their fraud and the negligence claim well the the negligence claim fails because a lender does not have a duty to negotiate changes in a loan contract what westcliff is complaining about is that the lenders declined to agree to change to terms having to do with use of money that already been paid the cases cited in the brief say that the lenders had no obligation to make those changes and westcliff argument is well there's a duty of good care under the laws apart from the contract because this was a they call that a complicated arrangement that involves services but there's no allegation that the services did anything that made westcliff the clear it's the fault the westcliff said it was receiving enough money from the property to pay the loan obligations but it decided to declare a default as a way to try to force the lender to renegotiate the loan terms and so negligence pled there's no breach of any tort duty by any of the any of the lender parties as far as the fraud claims the fraud claims as is the court pointed out were not played with any specificity at all the with the corporation the plaintiff has to identify the people who made the suppose it claims and has to identify which party made which claim but here there is none of that is the court pointed out and this was the second chance that westcliff had to plead its complaint and it failed to allege any detail supporting obligations that they have whatsoever i just don't think the court can read what they're telling borrowers at the bottom of page one ninety of the record about how the  desirous of engaging in discussions regarding modification with the lender and that the lender is agreeable to participate in such discussions regarding the obligations under the loan agreement i mean as a as a borrower as a i mean here we're dealing with a retired doctor who's the principal of this company and he's certainly interpreting this agreement as a promise a promise to participate in discussions that that never happen and there was detriment council went through the the the rights that  lenders had it in a default very quickly but you didn't hear him say that they had a right to conduct appraisals you didn't hear him say that they had a right to conduct environmental assessments on the property these and he said they had a right to enter you had a right to repair the purpose of the pre negotiation agreement the reason the lender is putting these obligations in is so that they have a definite contractual right to conduct appraisals to conduct environmental assessments and to saddle the borrower with the costs incurred for attorney fees for the negotiation and execution of the pre negotiation freeman none of those obligations exist without the pre negotiation agreement thank you thank you good case just your good will be