s b c s claim for judicial foreclosure is time barred so first and regard to the two thousand and thirteen assignment it is time it did one of two things either the assignment affirmative ly negated h s b c standing to bring this case or two at a minimum it created a fact issue as to whether there was a contract between h s b c and mr c has been a lot of time in their briefing addressing whether or not the two thousand and thirteen assignment is properly before this court so i'd like to briefly address that issue first first it's before this court because it's a public record both an r and initial brief and in our reply we've asked the court to take judicial notice of that a just b c and there briefing actually acknowledges that this particular assignment was recorded in the property records and they actually give some credence to the fact that that this is a public record so that's the first reason the second reason it's properly before this court is because it was considered by the district court and a fifty nine emotion that was filed twenty days after twenty eight days after the judgment in this case the two thousand and thirteen assignment was included and these arguments were made h s b c responded to the fifty nine emotion and response that included their allegations their assertions on why they were still right even in spite of the two thousand and thirteen assignment the district court then and a memorandum order of docket order indicated that she was going to affirm her prior ruling that the two thousand and thirteen assignment is properly before the court today as i mentioned the two thousand and thirteen us i mean one of two things first it affirmatively negated h s b c standing to bring this case it shows that everything associated with the loan being the note and the deed of trust were assigned not to a just b c but to nation star so because the rights under the security instrument and under the no were transferred to nations star that would mean a just b c is not the proper party to bring this case for that reason there's no standing and no jurisdiction the second thing let's assume for a moment the court is not persuaded by argument the second thing that the two thousand and thirteen assignment would have done was create a fact issue on who it was that would be the proper party and in pretty of contact with mr crump the assignment shows that it was nation stars business records that you know there is a security instrument now they interesting interestingly never indicated who is in possession of the note or the security instrument but they talk about it  as part of nation stars business records so you got that in the nation star affidavit yet we've got a two thousand and thirteen assignment that shows everything was transferred to nation star but  exactly correct it says all beneficial interest under the note and the deed of trust were transferred to nations what evidence is there to show where bank of america got its and i wish there was something that i could point the court to at this point i can't point the courts anything what we have is the two thousand and thirteen assignment and we have the affidavit from nations to so how exactly it got from bank of america excuse me to bank of america i'm not entirely sure but what we do know there's definitive proof that they were somehow the holder of the no but that's not the case of again ok so i indicates that it would be the last of the most recent owner the holder of the no so i don't think anyone is disputing that at some point h s b c likely had the right to bring a foreclosure action but that changed when everything went all the beneficial interest was transferred to nations and so with that point ages b c no longer has the rights that they the claim still fails and they're still fact issue when you look at mr crimes affidavit because at that point what you're doing is you're weighing the evidence you have a affidavit from nations star that states that somewhere in their that even putting the two thousand and thirteen assignment aside i there's a fact issue and with our to who it was that was the owner or holder of the note at the time that this case was brought moving on to the tolling issue it's our position the ages  addressed used two arguments the first issue they addressed for the proposition that that the statute of limitations was told was that the independent lawsuit in regard to texas rules civil procedure seven thirty six somehow told the statute of limitations but that just isn't the case seven thirty six no where in it does it indicate that it would told the statute of limitations importantly this court's holding in jackson versus johnson states that in order for a statute of limitations to be told it must be impossible for party to pursue its rights but that's not the case when there's an independent lawsuit that prevents a seven thirty six foreclosure still has options that can bring a counter claim things first it's going to be a later of when the claim is actually told and then second of course is is a thirty day period but that one doesn't apply because it was more than thirty days after which the statute had run so we're looking at the first part of  in that instance if you're looking at the calculation of the tolling period i think what a just b c is asking this court to do is go beyond anything that we've certainly found in the case law in regard to the calculation of days we rely on the texas code construction i have to say that you don't count the first day and you do count the last day if for some reason the construction act doesn't apply the bankruptcy code calculates time the exact same way the federal rules calculate time the explain what would happen as far as the extension of time but actually calculating the time with me to look at the co construction of the bankruptcy code or the federal rules and you get to the same conclusion now i think it's it's important under that calculation also to notice that bank the issue with that case is they're asking this court to go beyond what happened in that case they're asking this court to extend time beyond the actual time that someone would be in bankruptcy so they're saying that you should enlarge the time twenty five point someone days so the actual time is less than one hundred thirty six days when you go through calculation of the co construction act and the others and i've mentioned you also are going to get one one hundred twenty six days should be treated differently than the others i think there's a long line of texas cases that indicate that a independent lawsuit that stops at seven thirty six proceeding would not told the statute the primary reason of course is that seven thirty six is a procedural device  it doesn't create a substantive independent remedy and the comment in rule seven thirty six says this recent thirty six is prestigious only and does not affect other contractual or legal rights or duties anything which can be while you're starting back would you tell me the source of the proposition that you count both the first day and the last day as opposed to texas i you look at the time of day when a dismissal or might have been answered that's that's slicing it way too thin if you're blocking that they from exercising your rights your own limitations clock doesn't begin to run again until the next day so that's why we believe the judge controlling statute you know interpret it whether there's a tolling of the status limitation and we have cases so i'll confess confusion getting back and forth into the what is it the texas code of construction and you know i just don't want to one i hope the premise of supremacy was it you're not trying to interpret overlapping doctrine but it will within the bankruptcy co that the barber can't push the lender and she making that making really making no choice but having to file the lawsuit it can sit back and do the will seven thirty six expedited proceeding and do federal substantive law we're talking about texas state substantive law and the cases that we have cited and our brief first is this court's ruling a nationwide versus below which says when you're looking at texas substantive law texas do you need to apply texas courts statute of limitations and then in the sawat versus kincaid case that we cite that indicates the texas co least i don't i don't know a lot about bankruptcy but i just don't see where per se says that you make be correct in there and i heard you say this but you know the statute you know is kind of there because two of you a definite the furthest that we've seen any court go certainly that we can find on our end is that their best case scenario would be the actual time and i think even what they're looking for here is an extension beyond what we found is the best case scenario which would be actual  time so in this case the actual time is less than one hundred twenty six days but again although i know we're going to do some briefing on that issue but going back to the first issue i just want to be clear that we do out so we dispute whether or not they are the owner or hold we made that clear we think that the record is completely devoid of evidence that shows that h s b c was the proper party that they're either the holder or the owner and we think the nation star affidavit does not rise at the level of creating any facts to be considered that it is a just that it would be h s b c that's the correct party if anything it's nations are what h s b c is asking this court to do is to conflate what it is that a lender and a service or are they're trying to say that they're you know as long as nation star had their right that it's ok that h s b c went out and did this but that's just not what the evidence shows the evidence shows it's distinct that h s b c had all of the rights yet scuse me that nations are had all of their rights and for some reason h i think you think here it's the erie court we just love getting around down into texas law in a bankruptcy case couldn't be more centered leading to the end of the day on thursday but we'll dig it out figured out so specifically the and then they will get it to us after we get those then the case will be submitted and we'll you know figure it out and decide it ok all right thank you both all right this concludes the cases for all argument for this panel along with the