offer that isn't inconsistent with the first one at a time that basic contract lower to mid section nine ninety eight says any new offer communicated prior to a valid except in said the previous officer extinguished and replaced the prior one isn't that what it provides for well except that the new one the new offer didn't change anything as far as e w i was concerned it was only these other people that wanted to piggyback on change the amount of the money correct they were giving in fact more money they offered more well but only two people get out that a different day though there were there were other people that wanted to be part of this counteroffer right but there was more money offered operates well i submit that it wasn't it wasn't a new offer if there was still thirty five thousand dollars  i can give you thirty five thousand of these other people are going to give you twenty twenty five hundred dollars and so he accepted it and so that's what he was entitled to to accept that that offer which hadn't yet under its own terms anyway ok let me move on like to talk about the statute of limitations issue this one really covers all the all the defendants  here's how the argument goes mr before alleges that defendants conspired to defraud him into a get rich quick real estate training program and then they use that training program to lure into financing the purchase of overvalued properties for which he is burdened with that to some of the camp coconspirators at least for the for the next twenty years so the defendants move for summary judgment on the grounds that well you suspected this more than three years before you filed your complaint and in two thousand and twelve what he did to retain lawyers to send letters out right yes and and he has an argument he also he argues that the defendants misled him how the various defendants were all sharing in the in the profits of this of this conspiracy but even if the statute started to run when he filed his first lawsuit in two thousand and nine his claims weren't barred by the three years that's a little in limitations when he filed in two thousand and twelve but put all that aside the the summary judgment motion was was just basically one point fraud in the financing process of the mortgages yes well yes because yes because the overvalued the properties and the banks didn't do anything to  to to question whether these properties were overvalued he didn't know that all these the other that the successful member people who had participated in the program were actually does flipping these properties around sure but the overvalu and all of the fraudulent acts that are alleged all occurred at a time when the statute of limitations has already run right so i'm trying to figure out your theory as to extending the statute of limitations extended it doesn't it doesn't start to run till the last overt act in the conspiracy and the conspiracy is this giant planned that you get this get which create get rich quick program you lure people into it and then it and then you pass them along to people who sell them overvalued properties and and everybody shares in the in the profits of rights going mad but if you have the cash you could have paid for all of the propert cash right i'm sorry say it again he could have paid for the properties and in cash well i don't know that he could i don't know that's no he wouldn't of you in the finance that i don't think it i mean part of the part of the get rich quick scheme is no money down you know we get it we get all this great financing so you're saying that the evidence shows that the people involved in financing also participated in  conspiracy because well sure they were benefiting from some how did they participate in the conspiracy after sandy financed how did they participate in your view in the conspiracy because there was a m stagg's who was working for finance companies and also claimed to be a real estate broker and was passing along money to the to the earlier descendants to prosper everybody was profiting all the way back so what do you contend is the last overt act still going on he can't he's stuck with these mortgages well i understand he's stuck with the mortgages or what's the what's the last overt act on the part mortgages are actually attached to the for the many complaints it's got that freedom is named on most of those so the spirit court found that why it was not applicable because there were different types of misrepresentation on why it was a no defense to the defense yet you have to strike that's your burden and i didn't do that if he said it started back then and he came back and said i'm alleging all these these over continuing overt acts and my question probably wasn't clear the the courts below said basically that wyatt the case upon which you're a lie didn't apply to this case because they're wrapped misrepresentations and loan terms and wyatt and there was a different type of alleged misrepresentation in this case and you're injured and then five years later you come back and say i'm still injured this is it's different because the this is the ongoing conspiracy with the go vertex to collect to collect on the mortgages that he would like to good morning your honour's my name is charity from green and hall appearing on behalf of respondent freedom mortgage today it's an honor to be here in may it please the court i think the issue with this case with regard to freedom is very simple and that is should the plaintiff in this case be allowed to continually and repeatedly sue over the same wrongs for a period of thirty years simply because he has a thirty year mortgage california case law the disappoint and the lower state court in this case said no the issue here for plaintiffs is an attempt to get around that no the first issue that all address and i'm going to address a total of four issues in my time the burden of proof the last overt act doctrine equitable tolling as it applies to freedom and finally the fact that freedom was ultimately named in the present lawsuit as a dodo thousand and after the statute of limitations had already expired the burden of proof i'll touch on just briefly because it is a relatively minor issue here but it's an important point to make which is in this case here when we're dealing with this appeal appellant says the burden is on us to prove that for example the last overt act doctrine does not apply interestingly that's completely wrong in this particular case the burden of proof does not rest on freedom to prove that the last overt act and as doctrine does not apply our burden simply is to prove that prima facie case that the statue of limitations has expired once we prove that the burden shifts over to the appellant to decide that or to prove me that a non statutory exception applies and i'll read specifically this is actually from the plaintiff's own supplemental brief to the lower state court when he was asked this direct question now a poll in this particular action is continuously saying why put it at issue in my complaint in my fourth amended complaint i legit conspiracy i legit i was continuing to make payments and that should be enough to put it is you such that if you are going to prevail on the statute of limitations defense you have to show the last overt act doctrine does not apply interestingly when this issue  but should set forth the specific facts showing a tribal issue of material fact exists appellant did not do so here he had an obligation and he continues to say well i am making payments to this state yet even as we sit here today is unable to identify to whom and frankly has admitted that he doesn't know to whom those payments are being made so it's your position that those payments are not being made to freedom not to freedom now and that's the issue here your honor in terms of the evidence that was put in front of the state court as well as the district court the only evidence of suppose of payments that was presented at that time were the attached mortgages to the fourth amended complaint which proves nothing more than any of took out mortgages it does not prove that he ever made a single payment under them let alone that he made payments to the a specific defendants here with regard to for example payments to freedom there is no evidence of that despite the fact that he was given a specific opportunity by the court to address this issue when he was raised why it on the m s j he was given an opportunity to brief this issue and he failed to produce any evidence so simply put he has not met his burden of proof with regard to the second issue the last overt act thought believe this perhaps is the most important issue when it comes to freedom his argument essentially is that the last overt act doctoring should say any time that a mortgage is in any way even tangentially involved in a conspiracy that therefore the statue of limitations does not expire until the last payment on that or just made frankly that makes a mockery of the last overt act doctrine the last overt act doctrine as it is discussed in wyatt as it's discussed in beaumont as it's discussed in you know frankly vaca touches on it as well it raises an important distinction which is the last overt act doctrine does not equal a decision that simply says so long as you're continuing to sustain injuries then the last overt act has not happened that's not what that doctrine says the doctrine says there is a goal of conspiracy what is that main goal of the conspiracy when that goal has been accomplished the last over  properties it's alleged that one of those conspirators is the person giving the mortgage so that person continues it's not that he the other person is injured or that the plaintiff is continues to be injured it's that the coconspirator continues to be enrich by the conspiracy by receiving these mortgage payments on these properties that are overvalued if the mortgage or is in fact a member of this conspiracy why isn't that similar to why well here's the reason why is because wired for example as opposed to our current case there simply was no you know in y excuse me when we back up in white as opposed to our current case there were specific meant fraudulent misrepresentations as to the terms of the loan and therefore the payments that were going to be made on the loan there were no such misrepresentations that occurred here importantly when you look at for example the way that plaintiff to me appellant describes the conspiracy here he describes it simply as a get rich property flipping scheme not a get rich and you know convince me to take out a four percent interest rate mortgage loan scheme there's a huge distinction there for between the two specifically another interesting op with this is if you look at the people who supposedly defrauded plaintiff mr du four in this case the appellant claims that stacks greg prosper the w i alan all these people said hey come by these properties now not a single one of them is benefited by mr due for continuing to make payments not a single one they'd couldn't care less whether he defaulted or not all they cared about was buy the property but if one of their conspirators benefited from it it's a conspiracy and it would be arguably the last overt act i mean if everybody together that's all make some money for max and you'll make some money because you'll do the mortgage if the conspiracy was to get him to take on a certain type of mortgage payment again was the goal of the mortgage and get that payment done that's not the case here there is absolutely no allegation and no accusation whatsoever that the payments have anything to do with the conspiracy or the goal the main of the conspiracy which is what the last overt act doctrine says is important in these cases and your seven minutes have expired thank you very much they please the court good morning your afternoon your honors we're here for one simple reason it's an undisputed fact and your honor pointed out at the very outset we're here for the reason that mr du four failed to prosecute a timely filed complaint in the l a superior court that was dated may twenty eighth two thousand and nine do force filing of that complaint was dismissed interestingly for failure to prosecute that is a dispositive fact in this case as it relates to the central questions that your honour's of just inquired concerning because it under speed of the evidence evidences that mr de furor and his counsel prior to that time had a good faith factual and legal sufficient knowledge and basis to proceed with the actual filing of a lawsuit against the defendants all of the elements necessary to sustain that complaint present any filed accordingly now today we hear due for his demands for equity that the statue limitations should have been told or that the running of it should be equitable iest or the defense should be acquittal be stopped but the fact remains mr before created this problem neither the defendants nor anything they did or did not  as now suggested has anything to do with mr de force in the way we hear in the briefs an argument of lack of understanding or of delayed discovery or concealment that somehow the defendant's induced his the label these  after the fact theories that are designed to avoid the consequences of his admitted accrual of the cause of action and his failure to time would prosecute the same the suggestion that his five twenty eight on one complaint was not filed in good faith factual legally supported would effectively they can always that is counsel and gage in an abusive process are violated rule eleven that's not the case assuming the court feels the need to look beyond that five twenty eight zero nine complaint which i submit you do not have core wants to go beyond that the soundness of both the supreme court and the district courts analysis is amply evidenced in the record and we would ask three questions what did the four know and when did you know it that's the first question what did he actually  allege in the fourth a man a complaint which i'd like to briefly address and then finally and very importantly was admissible evidence presented in support of those allegations assuming the allegations were sufficient we know as of three twenty eight of all way that mr de for knew because he received an email confirming this that prosper my client had an ownership interest in stakes financial and that it had an exclusive referral relationship moreover as a five six of  his lawyer confirmed the suspicions as well as the knowledge of mr d for of all of the elements necessary for the assertion of the fraud claim against the defendant as well as prosperous financial interest and stags  financial the force knowledge is evidenced by a number of things the time is limited but if the court would take the time to look at the five six zero eight letter that letter says first of all mr before testify that he reviewed it legally actionable causes of action court in quote lawsuit government actions and it specifies at least eight specific claims for relief including fraudulent inducement detrimental reliance promis stoppel and i think significantly it references hundreds of thousands of dollars in estimated damages that he believed he had been injured with respect to as of that time it confirms and i quote mr de force understanding that prosper in fact had failed to disclose the financial relationship that prosper had with stags and that he had with these other that he had relationships with these other businesses in the transactions in question it also confirmed his understanding that prosper might earn revenues and might be entitled to as much as thirty percent of the value of such transactions and importantly finally it seek specific redress quote unquote to quote resolve these concerns without going to court and seeks a reasonable compensation consistent with the estimated hundreds of thousands of dollars interestingly before a response was given to that letter on five twenty one a second's letter from mr sherman with san complaint with the california department of corporations as well as a five twenty five a wait complaint before the mississippi department of banking and consumer finance and in those complaints he references the mortgage companies misleading actions and he mentions mr stagg's in particular now the tie between prosper and stags of course is his alleged undisclosed relationship he was well aware of that as mentioned in the five letter the five six zero eight letter in response to that letter prospers general counsel confirmed the facts asserted yes he said you were referred to before prosper did refer to four to stags yes there was a small ownership interest between he goes on to say a number of other things but consistent with mr de for his admission in the enrollment agreement that he signed that he was responsible for his own decisions and should consult legal county and other advisors in connection with any purchase decision that he might make the response of mr bryant specifically denied liability and said prosper quote cannot be responsible for a financial losses incurred by a rogue employee of a mortgage company for real estate investment decisions significantly your honour's no critical information was withheld or missing and despite the fact that we hear arguments to the contrary mr before had an adequate understanding of all of the elements of good morning your honour's charles person on behalf of the e w i defendants and i'd like to turn to the section nine i made settlement issue and counsel's comment was key because he said well from mr deforest perspective this was simply a different offer that's critical your honour's because it doesn't matter what mr de force perspective was his point of view is irrelevant what matters is the objective manifestation of the offer or case law is clear that the offer or is master of his or her offer and it was clear on the twenty third of said and september on twenty thirteen though it was loosely and  perhaps a better word could have been chosen then counteroffer but when n a c had been served while the original settlement offer was pending that then spurred the e w i parties who are also representing now in a c to say oh feel you've sued another one of us we're going to change our offer that offer your honour's extinguish the first offer and that is clear black lettering in my remaining brief time your honors i'd like to touch on the sanctions issue this is is near and dear to my heart having read a good of this case for four years and the crux here is that really are the two complaints the two thousand one complaint in l a state court in l a superior court rather and the federal complaint in two thousand and eleven have those two complaints not been filed this might be a reasonable case to deny  because counsel would have had a justification to say look i understand that you believe the statue of limitations may have run but i don't believe that and i'm going to go to court and make that argument we all have that right this is different he filed two prior cases that are if not verbatim they're darn close in substance and causes of action to what this instant case eventually alleged and what even if the dis correct in finding that the statute of limitations are the claims given why and belmont analysis why is it frivolous to try to reassert the lawsuit based on those well those cases weren't raised until years into lawsuit your honor so that they didn't come forward with the theory of well we understand we have a staff of a problem but there are these cases to overcome it happened after the fact and more to the point your honor in the two thousand and eleven federal case arc one of our co defendants proffered did file a motion to dismiss an iq case was dismissed for lack of subject matter jurisdiction didn't relate to the statue limitations correct your honor that's absolutely right until the hearing on summary judgment before the trial court that he came forth and said look i have a case i have a case so we would submit your honor that that eleventh hour justification which the trial court eventually decided was correct correct your honor but the it is he knew about it well so tell me how the district court abused its discretion we especially if sanctions motion we have a lot of discretion to the district court what would you say is the fundamental other than re arguing which you argued from the district court why would we say that even if we just agreed with their decision why would wash agree or hers in my view your honor to rule otherwise would be a disservice to the california civil procedure code and and federal rule eleven which requires attorneys to make an inspection rick when it is incumbent upon all of us before we file a case to do some investigation and some research to make sure those claims are valid  on notice here mr for was on notice here by the time he filed the instant case that they already had a statue of limitations problem he was already outside of the out of the statue imitations he didn't come in and plead why it he didn't come in and a balky in his complaint in any of them until it was the summary judgment hearing that eleventh hour last minute justification for why this case is saved from sanctions is not sufficient and what case is that this case his case mr de force case i mean here in the district court said the court is not convinced that the filing of the lawsuit was so clearly improper or unreasonable as to justify war sanctions so that's a judgment i'm stand what what kay says the judgment calls are wrong that we have to reverse in all circumstances well because it's a judgment call i don't know that i can ever point to a case unless it's exactly factually similar to say that's wrong i'm simply saying to this panel under the t if you're able to if you aren't the fourth a man a complaint alleges a conspiracy and continuing and continuing and damages and so why can't has has said that abuse of that standard is abuse of discretion all across the board on a on a sanctions motion in the court obviously thought about it and decided not to award sanctions so i think that's the end of the story on that argument is far the scope of the of the conspiracy this is he was mr before was lured into this no money down get a get rich quick scheme that in part relied upon the fact that you had successful students that's that's how these programs work we have successful students who will tell you who tell you how much money they made well they made money by flipping these properties and getting this financing and so the he would he was the guy at the end of the line that got stuck with the properties and having to having to pay the having having to pay he doesn't it's the defense has never said no no you're we're collecting money from us i on this motion in fact the money goes to a loan servicer and then it moves on to that and then it moves on to that the person that took out the gave the loan to start with but that's all that is beyond the facts that are or are in the record here so that you're not alleging any fraudulent fraud in the mortgage as themselves no orange no actually the complaint does allege that that the properties are overvalued that that yes that's right yes what you're saying is that you are fragile and investing basically right and then you're stuck and then you're stuck with us and you have no way out and they can and presumably they knew that perfectly well that the mortgages are all attached to the fourth amended complaint and would you agree that none of the defendants here today or is currently receiving money in that there are no i don't agree about that so who is still receiv they didn't put in any evidence we haven't put in any event about this at all all we know from the complaint is that he there's all these mortgages attack attached to the for the many complaints and he thought paying on them that's what he says  as to whether he should have mr de fortune to put on evidence in the superior court when he brought up the why it is you i still submit that it's up to the defense to to if if if the if if on the face of the complaint that there is allegedly a polling of the statute of limitations that it's up to them to show that it is not polled at least in the first instance on a summary judgment motion they didn't do that is not his job to rebut something that they have they have yet to put in issue well the facts are pretty much under spirited one thing in the sense that your theory was that he given that there was no genuine issue of material fact on that and the court could decide that as a matter of law right doesn't mean i'm a burdens we often take on the ever denture burdens but here they re they were it you raise the back in two thousand and eight ok and he was disputing about whether whether he'd been misled and there was in istanbul he was just addressing the issue that they that they raised and their motions that's all they talked about they didn't talk about  any of the other aspects of the complaint