the first case today is thirteen to five to seven jonathan foley versus wells f produced that and look at the figures and see if they in fact did do that and when they did it did they used a sugary twenty twelve figures when they first should have done it or did they use the figures from a year and a half later minimum that should have occurred even if you don't consider the waterfall provision in some sort of agreement if you do consider the award for a provision you have essentially three the for modification program which according to the statement of the phone all the words and i would only see an explanation without any reason context with the rest of the complaint your honor that that's the only line you can reference at all to anything having to do with with fairness of the modification process every other line in that complaint talks about fairness in the context of whether he was considered for and the district court not once the two different judges asked him at length what do you mean by that allegation what are you trying to explain to me what does that tell me to do both district court judges in two separate proceedings which we've we've cited the language of the provisions to this court in our brief went over in detail where the men were he clarified again and again and again all i'm talking about is that i don't believe that i was considered for a map to our application that's the only allegation that i'm raising in my complain itself and so if one looks at the factual allegations that are made in the complaint and the the letters themselves that are referenced which are part of the record specifically the february nineteenth two thousand and thirteen letter the june twenty ninth two thousand and thirteen letter  if you were if you were able to identify facts that showed that they had in fact violated some provision of the of what they were required to do then he might be able to stay to claim for breach of the settlement  you know there are there are procedural devices available in those circumstances such as a bill discovery no bill of discovery was taken in this case the supreme court has clearly laid down those and those two cases that the the doors of the courthouse do not open to a complaint until the for attempted to plead that claim for relief and the party was up here before the court stating i just didn't have enough facts because i couldn't get the discovery but here the claim was never actually played at all and in fact the plan of play himself out of a claim when he  law that's a complicated question it has to a two party answer the case law that this court has laid down i don't believe has ever afford a crow say the ability to make a new case on appeal because they were and the thirty five and thirty five b provisions have nothing to do with the settlement agreement and so even if it were to the settlement agreement which it was not the thirty five and thirty five b claims could not be considered waived by that settlement agreement because they have nothing to do with each other  but that's our reading of the statute and by the way we believe that the intent of the legislature was was to permit financial institutions to comply with thirty five b by  don't read all the sites in the record but which includes the cases of macaulay from the fourth circuit last he from the sixth circuit casey from the eighth circuit silva's from the ninth circuit aachen from the seventh circuit and flag from the second circuit  additionally every court to address the question is how the doc frank is not retroactive with respect to contracts which were entered into prior to the david thought fracs announcement and the statute itself as referenced in our brief says that explicitly  so there's simply no there's nothing whatsoever to support that proposition put forth by ago by my brother