can i'm only this is a case about a woman who wants to keep her home and make mortgage payments and due to her mortgage loan servicers refusal to implement a bone modification she's unable to do so when congress passed the dodd frank act congress amended section six of respa to significantly expand the scope and the umbrella of errors which a mortgage loan servicer is obligated to correct on  loan on the borrowers account and amending section six of us by congress indicated that not only is a mortgage loan servicer obligated to correct errors regarding the allocation of payments but in addition to that a more precise servicer is obligated to correct errors relating to avoiding foreclosure and to correct errors relating to any other standard service or do it accordingly the district cour holding was at odds with the statutes of congress through the da frank act empowered created and empowered the consumer financial protection bureau to enact a rule making process  created eleven subcategories of errors which a loan servicer is obligated to fix on an account three of the eleven errors directly relate to last mitigation now this in and of itself category which is at issue today in this case and this category is any error relating to the servicing of the now the c s t be noted that congress intended for this to be a a fluid and far encompassing statute and in its rule making process this has to be explained what it means to be related to servicing and then this explanation  to indicate that a mortgage loan servicer has an obligation to mitigate losses on its faults and mortgage loans otherwise last medication accordingly not only was the district court's holding correctly made loss mitigation determinations about the merits do you think this is just about errors in the processing of the paperwork right correct your honor and that actually brings me to my  nd point here which is the district court also occurred in making a determination that this case is about challenging the correctness of the decision as opposed to the implementation of  in their words they promised or they said you will receive a permanent modification if you make the three trial modification payments she made to three traumatic a she painted so they didn't say they didn't say that there was this whether it was their responsibility to correct the recording mistakes but you know if the recording mistake was not the fault of the service or then they would have been justified in not completing the loan modification right so so it sort of goes back to who's who was responsible for the for correcting the recordings well your honor we would submit here in this case  only entity that was that had the power and the ability to record the mortgage loan instruments and it was auckland themselves who indicated that they would not be able to implement the loan modification without recording the mortgage title documents but in this case your honor you are writing that op was really the only entity that able to record the border jim and this is the lenders usually record the in this case your honor our current provided a specific set of instructions for misname only to follow they told her we will prepare the documents we will mail them to you all you need to do is execute the documents and return them to us and we will record them for you now in this case mistime only followed those instructions to a t she executed the documents she returned them  make a little modification it's also to record instruments that's correct your honor and it was auckland's loss of these mortgage title documents that resulted in their failure to implement the loan modification agreement and again this this is why this case this case is not about challenging the correctness of a decision this case is about our clients failure to implement the loan the agreed upon loan and the issue at hand which was the implementation of the loan modification agreement and both am a kiss brief and are brief are in agreement that loss mitigation is related to servicing the the only the only exclusion that we indicate is our notices of errors which challenge the correctness of the loss mitigation recorded no it would not your honor but it would be it would be incorrect for them to facilitate and undertake a process to record those instruments and and completely by step process in losing the documents and then rely upon their own failures to refuse to implement a loan modification agreement now  damages something that's required yes your honor a borrower can either demonstrate actual damages or the borrower can demonstrate a pattern or practice of noncompliance with damages point our our focus here which is what we felt was the most important issue to bring before the court was the lower courts determination that auckland had no duty because because you use centrally waived in your brief there's no real appropriate discussion of damages your well your honor person firstly if this court were to find a there were issues of material fact as to at least three different violations under their requests for information the request for information statute and again secondly your honor you  know we we would not concede that there's been no no finding of shama just here the main issue we wanted to present before the court was that last mitigation is related to servicing when failure then where was the finding  you mean in the lower courts opinion your honor in the continue making mortgage payments it was it was auckland's refusal to fix it that perpetuated this error which is still ongoing as of today she hasn't made any mortgage payments for a number of years that's correct years i believe it's been about about ten years your honor but the only reason why she hasn't been able to make any mortgage payments is because of our claims refusal to implement the agreement that's all she wants to do she wants to save her home she wants does detail the communications between the parties regarding the loan not and the reason for the denial and the appellant does claim in that letter is that due to flynn's alleged failure to record the documents the improperly denied alone by so it's our made right you know but again in the context of this case that error was only only discovered due to the low modification and you know i can't say i don't have a letter here and i guess you can you can understand that there's a hypothetical then so i just sort of hypothetically if there were no little modification and move name ollie had just discovered that the documents were not properly recorded and said to the service or you should record them the services said ok we'll obligation of the director to correct that issue right in this case i mean in this case the op when did say we'll take care of the recording and the center executed documents that are sorry not executed documents and they said excuse the use of the back to us that we will do the recording to fix this problem and then they didn't do it i mean were they acting as a service or when they were doing that or were they just doing some kind of non service or duty and they were acting as a service there but again we don't have to turn within the c f p b and it's the preamble to the regulations and it's not just servicing as defined in the statute it's a broader judy so i think that's the question we're trying to decide how coke brought in so why wouldn't it be that if this is something that a service or would relates back to this case and we're not just dealing with the failure to to record one document for it's deeper dealing with the claim that there was an improper denial of a loan modification due to the title issue which prevented but i was just sort of asking you just hypothetically to abstract from a little modification so if i'm just considering the failure to record the documents in isolation it sounds like you're not sure that might very well have  damages and as the court noted the appellant to not raise in her brief argument that there there were any damages here you know it's our position that even if there was a covered air under the existing process purposed finding to q w ours under section six k which already included a catch all so you know including the catch all provision in the final rule under b eleven was consistent with the creed requirements under section six k and you know you can't read six k and regulation x you know separate and apart regulation x merely implemented six k and provided further details  policies and procedures that loan servicers need to take on you know to protect our workers and and you know it's our position that adding the catchall was consistent with the definitions and the procedures in the already you know i i think that obviously would depend on on the context you know of that particular case obviously in this case as the district court held the the argument that  failed to report loan modification documents with a variation of the argument that the loan modification was improperly denied you know i really think it would depend on the circumstances of the case and which you know which  denying the little modification is not about procedural errors that i've mentioned exactly your honor and you know there's no allegations in the complaint raised that any of the other sections have you know have been the the st issue which i'd like to address is regarding the failure to record the title on documents as is noted in the record this i quit and had been working on the title issues as early as the beginning of two thousand and fifteen well before the last mitigation for at issue and we would submit that this was something that was a recurring issue in deposition transcript they admit and the indicate that this is something that they were working on internal to get into and just address just address directly the point that ms jacobs which is that the notice of error that you file was to say that you were improperly denied the loan modification and you mentioned the recording of the documents only in the course of explaining that error it's not a separate error you think that that is an accurate account of the notice  issuance of a denial letter does not did not convert this case to one challenging the correctness of the decision and support and support for this can be found in two sections within within regulation  this is about the implementation that the correctness of the decision and and the nd point i'd like to raise this again the only reason that we're before this court today is because  it's kept her in default it's kept her in an ongoing risk of losing her home in foreclosure it's caused her emotional distress and she is the exact intended beneficiary under under the dodd frank act