case may have done a man owens please the court good morning your honour's i think it would be helpful if i perhaps divide my argument into two i'd like to speak first regarding the jurisdictional issue that  we face and then i'd like to move on and speak frankly about some of the problems with my case and how i think that the court might wish to go about resolving first of all there is an issue of jurisdiction here and that issue was of course raised by the court sue a sponsor we did not raise it but now that the matter is raised we do believe there is a problem and the problem is really one of two components the first involves what conclusions can be drawn from the record that we have and the filings that have been made on appeal with respect to the existence of diversity jurisdiction the second component of the problem is if the court believes that it cannot sustain based on where we are now the existence of diversity jurisdiction then what is to be done should the court remain and to the district court for dismissal should the court remand to the district court for further fact finding and a reopening of the record with respect to the citizenship  the parties or should the court itself allow new evidence such as for example the papers that have been filed by my friend in his motion to amend the notice of removal we would respectfully suggest that the evidence is not sufficient to show the existence of diversity  jurisdiction the right now on the record as it was before the district court i think it's agreed that we don't know enough in order to say that the parties are diverse we don't we  there is a news corporate structure that is put forth that a new company structure we're told that there's an l l c and then there's a holding company l l c and that then there is an australian company corp and that all entities are in a sense not that they're not texans enough there's nothing texan about them and this said i would note that in the corporate disclosure statement that the apple e filed in its brief there were two other entities specified one was computershare u services eat a delaware corporation and then its owner computershare us a delaware general partner and i'm not sure that we know enough about them so we we believe that all the evidence is not is not sufficient right now with respect to the citizenship of the apple lead the question becomes which of the court do i'm not sure we have enough evidence here on earth we have done and bradstreet reports we have a corporation a corporate disclosure statement i don't believe we have any information about this delaware general partner or delaware corporation perhaps my friend will say that i try to match your new challenge what specifically did you challenge destroys diversity in this case i challenge all of their evidence and i we would respectfully believe that this court is not the appropriate for to hear it or to weigh it ok write your to your challenge in iowa without them specific about anything is that what you're saying well your honor i don't think it's it's enough i don't think there's been enough presented am is it out of toppers and is wrong as well for one i'm not sure about the delaware and ts whether they are supposed to exist or whether my friend is in saying that they're not a part of the picture he might clarify that but they want to probably move on america your case may be i mean you and your timing do with it going to be you wish but we're not going to resolve the diversity right here in the short term and i should think it sir on the merits and we think there are several points to consider some of the key ones are there's the question of exhaustion and there's the question of reliance with respect to promissory estoppel and there's also the question with regard to the contract claim of consideration with regard to exhaustion we do have an exhaustion problem and we don't deny that but we still think that there are ways that the court can reach our arguments we've johnston i'm sorry what is your exhaustion problem well the exhaustion problem i think as my friend would put it would be that one with respect to the breach of contract claim we didn't argue specifically that the well your honor we do believe that the nucleus the facts has always been the same and the arguments made have changed in terms of their phraseology but we've been saying the same thing all along which genes and you won't say well when i understand your honor but i think we we have said throughout that they were unjustified in walking away from this modification i mean does the started of frogs in under texas law apply here i mean you got a loan for over fifty thousand dollars which would seem to indicate that you have to have some sort of document signed by both parties do we have that here we do not your honor first of all yes the statute of frauds does apply as second of all we do not have an agreement that is signed by all the parties wouldn't be so fast to say that you have a letter that was sent out by the other side you're posing it said sign up this thing you know you qualify for a long modification sign up these things and send them back in if you signed them was was there anything in their package of paperwork other than the fact that there was a place for them to sign but the letter of the transmetal letter that suggests of senate out you said congratulations you've arrived sign up this stuff and send it back i mean was they had enough those two documents together the transmetal letter and the contract was that enough for a contract why not we think so your honor value the i don't know whether you do think that you can say she was going to say i think i made that argument for you but i don't understand why those two documents taken together are not enough here why she made the payments you're honor i didn't mean to say that they weren't enough i just meant to say that there's no paper that we both in response to judge prados question there's no paper that both have signed but i don't think that that is a requirement  i would like to say with respect to exhaustion if if if i may that although we think federal laws the law that should apply in the more berger case the supreme court  c versus b p products north america five nineteen f third to fifty six at no twelve the court said  that that it would reach the issue of whether or not there was an innovation because they did they did feel that i believe there would be a miscarriage of justice so there is there are there is a bit of disconnect if if if for example on jurisdiction we do say there can be an amendment there can be new evidence then i understand the jurisdiction is its own animal but it would seem unfair to say you can have new you can bring in new proofs but you the owens cannot on the basis of all an existing nucleus of fact make new arguments decline electronically the problem was that their equipment or according to one of their persons was was messed up and that electronic signature never went through is that correct correct so should that count against you because you they never got a signature are would you say because it was there or equipment fault that it should not be held against your client your honor i would say that it's should not be held against our client because it was their fall and mr owens testified that he had spoken with a representative for the apple e and that that representative had indicated that there was a problem with how it tronic signing room and that they don't use the same software anymore i think that if you have a letter that's really in an offer which is how we construe the letter accompanying them modification agreement and someone goes into your signing room and accepts then if you don't get it it's on you moreover they make an argument that i think rings hollow on the facts of what happened here they make it page three zero nine of the record their reply in support of summary judgment they say you didn't try to do anything to save this loan until it's too late and i had fine difficulty accepting that and i think that the court should as well because while is the lone modifiable in december but not in february is there really conceivable that it fell so far into default by february that they couldn't modify it i think they put it sounds to me like in these or jury issues of course i  we would respectfully submit but it sounds to me like what happened is that they changed their minds they didn't get the software they didn't get the acceptance or somebody said we just don't want to do this a supervisor said we just don't want to do this can the record contain sufficient facts sufficient allegations for the court to anticipate jurisdiction there is no hard evidence of jurisdiction because it wasn't challenge below there was never an issue of jurisdiction until it was raised here at the in the legit did you allege you did your honor not only did we allege it in our notice of removal but statement supporting the allegations of jurisdiction appear throughout the record for instance  the record contains sufficient allegations record on appeal page four this is the problematic statement it says that we're national banking association but it does say headquartered in colorado that's factual statement correct factual on page five same doc in the notice of appeal the very next statement after the form the state is there is complete diversity of citizenship in this case because plaintiffs are not citizens of the same state as defendants direct quote the petition filed in the state court that we removed contains a statement as to s l s is formation in jurisdiction they say it's a delaware  correctly the principal place of business in colorado joint discovery plan that was filed rule twenty six f it contains a statement that jurisdiction is appropriate diversity jurisdiction is appropriate courts properly exercising it and no party contests the jurisdiction that's record on appeal want to one in one of two and then at one fourteen we filed in response to judge gilmore's offer order a statement concerning removal judge gilmore does this in every case that's removed she requires a statement of when the entity was first served when the removal took place when the case was filed and that the nature of the diversity sixteen fifty three gives us a very easy answer here i've moved to him in the pleadings scuse me i'm in the notice of removal to properly state by city incorporation citizenship not only in fact there are none select loan servicing as a delaware l l c it's owned entirely one sole member select loan service and holdings l l c which in turn is own by computershare ltd which is an australian of trust our contract similarly any agreement to modify the terms of the note in deed of trust or also a contract nothing more nothing less these documents are governed by fundamental principles of contract law they've been around for centuries they are well known to all of us these include principles governing formation of the contract offer acceptance consideration meeting and nines statute of frauds both known to trust and any subsequent modification in the court below your appellants ass judge gilmore to enforce an agreement that never gell into a enforceable contract by norinco some of these fundamental princ the court should decline this invitation she do so for two reasons first an enforceable contract never form there simply is not the presence of the prerequisites that would make this an enforce cry is that true mean that your cover letter where you transmitted this thing did not say there were any more conditions on you it was you all do this and the thing is modified so it didn't contemplate it it it what it transmitted had a place for a signature but it didn't contemplate that your client was going to rethink the deal the proposal was signed up t condition was to accept this sign on the dotted line and return it to us by december thirty first twenty thirteen that never occurred under texas law acceptance to be effective has four elements it's  complete exceptions before the the offers revoked or before a lapse of time specified for responding to the offer make the exceptions in strict compliance with the terms of the offer communicated to the offer and do so in a clear in a way that matter that's clear and definite in this case there's no doubt the onus is intended to an attempted to accept a self but on december twentieth they went into this computerized signing room and the records unclear as to what happened there's an allegation mr jones unsubstantiated testimony that it is the fault of s l s a software my personal opinion is it's probably user error but we don't know there's no evidence of either in any of that the onus of accepting the offer falls on mr and mrs zones and the offer wasn't accepted there is ample evidence that s l s never received the signatures prior to december thirty first twenty thirteen so their attempt at accepting the offer was ineffective no contract for  that is if the nov eighteenth two thousand and thirteen letter which is the record it to eighty eight if that's construed as an offer we assume that for argument purposes we haven't conceded it i will not go into the counterargument on that in any event the offer was not accepted in strict compliance with the terms of the offer and it was not communicated to the offeree in these regards acceptance fails even if we get past that there is no consideration for this contract for this agreement  clearly under texas law to be the legally enforceable contract has to be supported by consideration this is simple and if they had gotten the thing back to you mean f and it landed where it was supposed to part of it had been except when it had been supported by consideration i made the payments you told them to make establish precedent would say no lie because they are already obligated to make payments under the and i agreed and here that they were in to follow up i mean they i mean definitely weakened their position versus wells fargo twenty thirteen which is cited in the brief in this court addressed a very similar situation where and in that case an oral promise to modify had been made then retracted borrower sued seeking to enforce that promise discord and allies the arguments and the facts before it and said that the modification is simply a repro to make payments that are already do under the no deed of trust as such those payments do not constitute a new consideration james case held that martin's versus carriers and it's set forth in the briefing of considerable authority for the proposition that a loan modification in the case of the loan modification promise to make payments under the modified loan is not a new a federal program it is this was a half modification yes or and so this is something that the that the federal government requires you to do thr sure require it requires maybe two strong hampers of voluntary program that mortgagees can participate in and they are given some financial incentive by the federal government for doing so are you saying that even if they would complied and paid the money that they had paid and sent their signature electronically and complied with the letter offered that still it was not a binding contract because you not signed off on it even though they made the offer to accept the deal for we still don't have a contract your honor i'd rather not speculate and candidly i'm not aware of any authority that addresses that question the authority i'm citing simply stands for the proposition that the promise to make payments under modified documents is not a new consideration it's certainly consideration but it's not new consideration that would support that contract that mo h i don't know if i'm answering your questions or i'm probably dodging it but i'm not trying to for the first time on appeal the appellant's raise the argument that they have reenergized accrued interest and agreed to pay interest on it this is not properly before the court and should not be considered because it was not raised  in point of fact when we move for summary judgment the summary judgment response never mentions consideration never argues that it's present should the court decide to consider this argument the court should also decide that it fails as a matter of law here's why  but the modern volved in the james case was also a hamp loan modification it also remembered sized accrued interest into the loan and charged interest on previously approved interest in light of james in light of the fact that this wasn't argued below there is authority to reject this argument additionally in the case of norwest acceptance versus hi nicky instruments this is a fifth circuit one nine hundred seventy one executer excuse me the customer executed an additional note directly to norwest acceptance with a higher interest rate this was an accommodation for a previous default norwest took the approach they will just sign a new note and start over again will sweeten the deal a little bit and here we go when the case came to appeal this court determined that the two percent increase in interest was not new consideration not good in a slightly different context in that context one party was arguing that the second note constituted a new agreement a new contract with independent consideration the original notes still  existed the court found that this was merely innovation or modification of the original no not an independent contract with independent consideration that's important because we're talking about interest on interest here which previously said simply increasing the amount of interest in the aggregate is not a new consideration when there is a prior obligation t judgment below quezada stoppel was not asserted anywhere in the trial court these theories fail for a couple of reasons first is there not before the court second the simply are no reliance damages here if promissory estoppel is played as a defense under texas law it is a defense to the operation of the statute of frauds in this case it may be a valid defense to our statute of frauds argument but the contract itself the alleged contract still fails because the acceptance issues and the consideration issues so promissory estoppel might overcome the statu frauds argument but it doesn't get the loan modification agreement across the goal line into an area where it would be an enforceable contract if we want if excuse me promissory estoppel is played as an affirmative cause of action  it becomes a cause of action for reliance damages where the goal is to put the party back into its condition prior to the agreement prior to the reliance reliance damages preserve the status quo until and that's when i depose mr owens and this is president these these excerpts are present at the record on appeal to forty one to forty three when i depose mr owens in response to the question what did you do how did you change your position in reliance on these representations mr owens answer was a called an s l s representative i attempted to sign a modification agreement i sent an appeal letter the remaining factors or are simply not reliance there is no change of position for mr and mrs owens so there are no reliance damages no cognisable reliance damages and if you search the record you'll find no evidence of reliance  this court dealt with a virtually identical argument in walton or versus aurora loan servicing that's a twenty thirteen case in the court's analysis in the walter case it looked at an affirmative claim for estoppel at looked at the loan modification in a posture very similar to this one and it said there are no reliance damages no evidence of reliance all a jury could do is speculate there for summary judgment spoke with model number one lowered the interest rate accruing at the rate the rate of interest was accruing by at least two point nine one percent increase the principal balance of the loan by at least twenty one thousand dollars and extended the maturity date forty years from the day of the loan modification which obviously cut the amount of money do interest s l s increase the liability on s l s his books and increase the amount of time in which  just moving through the points that were raised by counsel for the apple we first of all on on jurisdiction the problem we submit is if the court  the case law from this court on what to do here is not clear i would like to know does a side point that i think one of the arguments that i made it paves the end of my supplemental brief if it should be considered in light of justice ginsburg's point at the end of caterpillar v lewis in the interest of candor i came across that yesterday and i thought that it was something that i should clarify to the court i think that our argument for not allowing supplementation of the record is not it's not wrong but it should be considered in tandem with  you want to supplement the record we don't want to supplement the record we believe they are the one that's his should be allowed should not be  allowed if i ever said that your honor i'm sorry i misspoke i mean it should should not be supplementation but i think our argument that supplementation should not be oh ouch be considered in the white also what justice ginsburg says at the end of would remove cases to federal court and that there was an argument in caterpillar vs lewis that there might be some gamesmanship allowed if you shifted the focus of time which you looked your honor with respect to the question of does interest on interest constitute consideration we do not submit that the cases cited by my friend go as far as  parties to see what they thought was important here in this case s l s did think that interest on interest was important because they specified in the modification papers very clearly this is an obligation you wouldn't have otherwise and that is some indication that they thought it was a can a bargain is something that was being bargained there is a case from the texas court of appeals from eight hundred ninety three baker versus collins at twenty three southwest for ninety three where the court does appear to suggest that  increased interest can be consideration when it's traded for more time to pail on and it is true that in that case it's a little difficult to know if on the modification they were giving security for some notes that wasn't extant before i found the language a little unclear at page five twenty four of four techs evaporate five twenty but we don't believe that it's foreclosed that interest on interest is not consideration with regard to promissory estoppel if the only damages are reliance damages if the question is can we get put back to where we were before well my friend has said in his reply and support of summary judgment that now you're still late for the hand so if it was before then that and that's the opportunity that was lost by going down this modification rabbit hole the opportunity to get a modification and putting them in the position they were in before means honoring the modification