involving the regulatory regime asked by congress in two thousand and ten and implemented by the consumer financial protection bureau in two thousand and fourteen relating to the fourth place insurance component dodd frank regime and as part of that regime and as discussed in our papers the consumer financial protection bureau imposes a duty pursuant to authority that was jelly catered to it by congress on mortgage servicers to avoid forced placing insurance which means placing borrowers insurance coverage with coverage procured to cut to the chase what injury has your client suffered the in the insurance that she was charged cost her more money did she pay that money she borrowed funds and paid the money the loan was forgivable but she did pay that money in fact put her into foreclosure if she hadn't paid it she were lost her home my understanding was that the state of florida paid that money the funds were provided in the form of a forgivable loan by the florida housing finance agency so she under took to either repay the loan or comply with the conditions that ultimately would have led to it being forgiven hasn't that been forgiven at this point as of the day the trial had not been right but what about today most likely it has been by  now however the fact remains that she borrowed the money to pay for the insurance that she was charged against the law i think if we look at situations where people may incur a debt and then ultimately be forgiven under that debt would have to look at every consumer who ever filed a chapter seven bankruptcy and obtain a discharge she incurred the liability and she complied with the conditions to what i'm what i'm having a hard time with is the fact that she has literally today not a dime less in her pocket than she had before these acts that are the basis of the lawsuit so i don't see how if she didn't have any damage how either she wouldn't have standing or she wouldn't have the necessary predicate to rest a claim in the first place while why is that incorrect if she has not paid any money and now since the law has been forgiven has no were because she qualified distance from the florida hardest hit program presumably if the she were charged less money and the amount of money that was made available to her through the program was fine and presumably if she'd been charged less money she could of the plug on the same amount of funding from the florida hardest hit program and could have used that for more years with insurance coverage we don't know that that's not in the record that wasn't what the district court based its opinion on that damage done have damages she hasn't got an escrow account that violated it regulation x we have no claim so to me the twenty thirteen repayment plan didn't create an escrow account and there is no evidence in this record of an escrow account i think your argument is an escrow account under the repayment plan is that what the argument was yes ok tell me how that creates an escrow account as it doesn't look like to me she ever had one with money set aside for taxes and insurance company you're following but there was never an escrow account that she ever had under the repayment plan well we would respectfully disagree with that tell me how under twelve c f r ten twenty four forty ten twenty four seventeen  regulation defines what an escrow account is and it says in escrow account means any account that is service or establishes or controls on behalf of a borrower to pay taxes insurance premiums including flood insurance and other related charges with respect to a federally related loan including charges that the borrower in service or have voluntarily agreed that the service or should collect and pay definition a compass is any account stablished for this purpose including the trust account reserve account impose impound account or other terms in different they never established and i count under the repayment plan what they did is they just required her to reimburse them for money hit have already paid well you say that was account or anything establishments that i just said you got to reimburse us from money they've already paid already paid the taxes and insurance correct i would say that is incorrect because the regulation continues any end company paid those things out of their own funds it did and then it added additional principal to her debt and ultimately sought foreclosure against the collateral property based on her failure to pay that to that extent it's the same thing in substance as a home equity loan if a borrower takes out a home equity line against their home they don't deposit any money into an account and they don't necessarily receive any money unless they draw on that home equity line when they do that becomes a debt secured by the home here the funds were advanced to pay for the taxes and insurance on the borrowers behalf and she had agreed to repay it and her failure to repay it triggered a foreclosure against the home  so there is no requirement under the ordinary sense of the word account that there be an actual deposit of money into any specific fund and her was her required payment a mortgage payment or some other kind of pain that it was a reverse mortgage so there was no requirement to pay principal during her lifetime as long as the home so why does she qualify under twelve c f r ten twenty four seventeen as they are his mortgage payment is more than thirty days overdue was her mortgage payment every thirty days of a portion of the payment that led to the foreclosure which was the funds advanced for the test for the insurance as well as the taxes was overdue is not a mortgage payment that is a mortgage payment it was secured by her home i thought a moment ago you said it wasn't a mortgage payment i misunderstand you i believe you did your honor there is no obligation to make principal and interest payments on the initial amount taken when the loan was originated the obligation for her to make payments during her lifetime rolls because of the repayment plan agreement and that that portion of the debt that was covered by the repayment agreement entered years after the loan originated was such an obligation that she had to make payments on it i mean ask your question what are we to make of the fact that son west introduced the disclosure form signed by your client indicating quote that she declined authorization for her lender to pay the property chargers and agreed to pay those charges herself or her phones and that basically answer the question no you are that why not happened at a point in time that was totally irrelevant when the law i was it totally irrelevant when the loan was originated the regulatory regime was in effect the duty to maintain the fourth place of insurance didn't maintain the voluntary coverage did not exist the operative event that triggered the duty and the creation of the  subsequent agreement in which to be put the repayment plan represents so in two thousand and thirteen i believe the loan was originated in two thousand and nine and two thousand and nine there was no escrow account there was no dodd frank and there was no force placed insurance when all of this comes into place in two thousand and fourteen which was only a few months after the two thousand and thirteen repayment plan agreement so in fact anything that happened that origination is totally irrelevant to what this case is about why in a reverse mor situation would you create an escrow account anyway there's certainly no monthly payments to be paid to the bank for interest and cetera u i why but you why would you in any event create an escrow account seems to me that grown counts have little utility in the reverse mortgage context i make a whole lot of sense on the other end so if that's the case i'm just trying to find out whether there's any basis to establish clear error on the part of the district court who had a bench trial made a finding of fact that you didn't put forth any evidence quote to establish that an escrow account actually existed in two thousand and fourteen and  fifteen that's where account is created under your verse mortgage for the same reason it would be created not to pay interest payments to the bank no but that's not what the s word count is for the purpose and what's the purpose of the escrow account and then as the reverse in the reverse mortgage context as defined in the regulation that i cited a moment ago it is for that on behalf of the bar to pay taxes and insurance premiums that's why the escrow accounts exist to and they serve the same function in a reverse mortgage that they serve in a traditional  got it you've reserved five minutes for your rebuttal thank you and even assuming argue window that there is or whether or not the district court clearly erred in your findings about the yes we were careful to do we have to answer the first question here at all i simply assume for present purposes that there is an implied cause of action without finding that there is and simply go on from the second yes you can and i think based on the questions that i've heard from the be in agreement that there is absolutely no evidence of an escrow account in this case and certainly there was evidence to support the district court's finding that no escrow account existed and when you look at the definition of an escrow account under regulation act it's fairly apparent that it's usually dealing with the forward market situation rather than the reverse mortgage situation and judge marcus to answer your question about how would play in a in a reverse mortgage setting a reverse mortgage is based upon the equity that you have in your home and so you can then barwon against that if you wanted to do what they call a set aside account which is what we put into place on docket one fifty five that was denied you can hold back some of that equity and  mortgage not to make the interest payments but simply to set aside a sum of money for the taxes from the insurance right correct and that's why son was asked the question at the beginning of the relationship do you want us to do that and then she elected no and we put that form in as part of our appendix so there was no she tapped the full equity she didn't want to hold back and so it was her responsibility at that point in time to then make the taxes and insurance payments the the argument that the repayment plan created a escrow account definition definition only it doesn't make any sense i mean if you read one judge grant you brought up the argument about if you're late by thirty days on your payment well there are no payments on a reverse mortgage so that right there tells you it falls out of it and then if you look at the language that the appellant to talents in their brief it includes any arrangement where the servicer adds a portion of the borrowers payments to principal we don't have those payments so you don't meet that first step and then subsequently deduct from the principal the disbursement items from as gorka you don't have those deductions either because you don't have a payment and the district court made that exact finding in her memory and opinion and said you don't have any evidence of that and common sense would dictate that if you think about it for a second and it was admitted in the appellant opening statement if son west had not done anything in two thousand and twelve had it not renewed in two thousand and twelve it would have not violated any respite for vision there would be no claim here but because son was to actually took the positive act of advancing funds for its bar that it had no obligation to do and then later asked for those funds to be paid back now all the sudden it's created a rescue violation that doesn't make sense that that when it when the lender does something that it doesn't need to do for the benefit of a borrower that all of a sudden now it's  suffering the penalty i do want to address something that judge grant you talked about with the more fun because it was actually something that i thought about also when i was preparing for this last night there's another issue about whether or not there's even any kind of relief that can be afforded by this court because the damages that were being sought and it's in footnote eight of the appellant brief was the difference between the fourth place insurance and what she would have been charged had there been a renewal and there was a factual finding by the district court and it's in paragraph seventeen of her memorandum opinion where she says that the plaintiff failed to put on any evidence of that issue she says that the evidence that they put in which was the two thousand fourteen letter from the insurance broker didn't state while the state in amount didn't state what the terms of coverage were and then the other piece of evidence was a two thousand and sixteen policy that was completely different than the policy that the plaintiff out in the past so the court said that you have even provided me with any evidence of damage even if i was to find a violation that was never appealed that factual finding was not appealed so even if you went in favor on everything that the plaintiff is asking for you get back to the same issue of you still failed to prove damage one because you didn't put on any evidence of it and then to the judge grants point which is what we were raising is you have this elmore find issue of you got all your money back and your debt is going to be forgiven i will address the issue of whether or not the claims that they're now seeking under two zero six five k were waived the argument that was made as to two six zero five was that well there was a motion to dismiss that involved to a six five and so the matter was put forth if you actually read the memory and that the decision on the motion of a man by the district court what the district court says and this is  on page forty six of the appellant's appendix she says plain his complaint was brought under twenty six zero five m not twenty six zero five she then goes on and says she's requiring the men men only because it's unclear whether or not the submission of a qualified written request is a prerequisite to twenty six zero five m then the amendment happens and again it's still a cause of action of twenty six o five and it is not a cause of action under twenty six o five same issue with twenty six o five k i recognize that we had these discussions at the trial about the regulation x in this escrow account but that was all in context of one hundred to four point one seven and one of the things that we argued at the trial court level that the district court ruled in our favor is that there is no private right of action under one hundred to four point one seven that finding it by the trial court was not appealed either what they're trying to do now is come around and use twenty six o five k to bootstrap in one or two four point one seven but again that was not an argument raise that appellate court that wasn't part of the amended complaint that is an argument that was also waived on appeal  and unless the court has any other questions for me i have nothing further kohut you had the last word in new reserve five minutes john so first represents that there was no evidence put on damages won't the he's reading from a portion of the opinion the district court's memorandum opinion that relates to a different claim and relates to a different period in time in fact there was evidence of what the insurance had it been renewed would have cost in two thousand and fourteen and in two thousand and fifteen and there was evidence of what it actually cost in the district court didn't consider that evidence because it found the claim wasn't forcible he ought counsel also represents that the issue was waived we would submit the issue was squarely presented in the pretrial stipulation the issue of law one of the issues of law that the pretrial stipulation framed was whether the implementing regulations of the following the dodd frank an act meant imposed a duty on the service or to maintain the bar as voluntary coverage and enforce  an issue of fact and i agree that that is the overarching issue in this case is whether under the definition set in twelve c f r ten twenty four seventeen the repayment plan agreement constitutes ok let's go back to the language he talked about that you highlighted an arrangement where the service or adds a portion of the bars payment to the principal they didn't and the amount of the force and surance two the principal payments she was making each month because she'd been making principal payment well the language is that correct i would i don't believe it is you're on the languages offered however it doesn't say monthly principal that she owed on the reverse mortgage and that's why i say the language is awkward because payments when you make a payment on a debt the debt the principal goes down it doesn't go up so the payment should be subtract it actually would make no sense to to read that as saying that principal payments increase the balance of the debt but more broadly that's not the only language in this regulation that we care more broadly it says that an escrow account means any account that a service or establish is to pay taxes rest because of remediate statute it is to be construed broadly in favor of the consumer protection objective behind the statute the account that was created was a loan secured by the borrowers primary residence to pay for taxes and insurance there is the memorandum opinion assumes that there has to be some sort of a cash deposit in order to create an but nothing in the regulation establishes that and that's not consistent with the common usage of the term account when people take out a credit card that's a credit card account it has an account number but there's no cash deposit and what the repayment plan agreement was in substance and in fact it was a low it was a loan that was secured by the reverse mortgage it was the borrowers initial failure to pay the principal on that loan that led to the filing of his own of the foreclosure complaint and ultimately when she did pay it the foreclosure complaint was dismissed therefore consistent with the language of the regulation the funds that were used to pay for the force placed insurance were was additional principal that she ultimately did pay bad so there was a lot of focus and i think it takes the relevant facts out of context there was a lot of focus but whether or not she made payments ultimately of course she did make payments to construe this stet this regulation in any other way would really be inconsistent with this court's opinion interpreting respa including the most recent one renfro versus nation star where this court has consistently recognized that as a consumer protection statute and a remedial statute the regulatory regime is to be construed broadly if there is no other questions thank you very much