this is a case where we have a borrower who purchased the live or mortgage from the century mortgage in two thousand and six misquote maintains that she would have never purchased this loan if she had known that the library interest rate could have been a minute if you laid it or fixed by the person that she was borrowing the loan from in essence this is really a case that except for the redistribution redistribution of wealth from the middle class to top one one percent through library rigging we would have had over ninety percent of the loans that were in this mortgage backed trust actually foreclosed on when a financial institution is allowed to bet against the homeowner or the borrower in a mortgage backed securities trust the independent market function is absolutely necessary when you take away the independent market function here the independent market rate all the sudden you're giving the  borrower all of the power and authority to rule and the beginning of the womb to the end of the loan in what happens in the middle and in this case what happened in the middle was we had a middle class of borrowers in a one that all their loans were put into a one billion dollar mortgage backed securities trust that were designed specifically to be foreclosed on if barclays who in this case design the trust also decided to buy the cap swaps and the interest rates and that's exactly what happened the vibe or rate is actually maintained through sixteen different institutions and only the metal institution numbers are actually taken to create the library however here we have the anti competitive effect because we have every single major financial institution that basically participates in creating this rate when every single financial institution gets to participate in creating a libel rate which we already have evidence that this was fixed and manipulated in order for them to take advantage of the swap trades that they were doing then all the sudden you don't have any entry into the marketplace that are loan it was a it was called a locked interest rate interest only loan it was locked for the first for several years ok and so it was walked until where i believe it was locked for the first five years four years or five years it was several years ok so until either two thousand and ten or two thousand and eleven someplace in there correct ok and the reference to the rest she got was was fixed was was refinancing because her prior library loan that it was starting to adjust these are set subprime subprime loans that have a lower initial rate and then they adjust upward so she was shopping around in two six for a new loan arrangement she was pushed into a new library loan that had this fixed rate upon the promise was like a bait and switch upon a promise that it was going to be a lower loan rate when she gets there it's eight point seven seven five but the than they might have been if there'd been free competition is that correct that isn't the way the loans actually operate yes there is a lower rate if the law was based on your moment of debt was based on literally that live or rate but the way these mortgage backed securities trust work with the subprime loans a subprime loan actually even though you have this locked interest rate your debt is tied to the library plus whatever points so you're not really paying off your debt when you're paying off those first so years so what the what the financial institutions were able to do they knew exactly how much they were going to be getting an interest rate from the borrower because they fixed it at the eight point seven seven five and then at the same time under the swaps they knew exactly how many months they could go out on doing the swap agreements which homan sided with how long they did the fixed rate and so then they were able to make eight point seven seven five or eight from new century where she knew she was getting that rate and was there anything in the document that indicated that was tied to the library or yes on the very first page it says this is a live or market rate ok and that rate was suppressed it was actually a lower rate than it might otherwise have been correct ok so she sounds like she got the benefit of the anti competitive acts by banks somewhere beyond new century this is exactly what the district court or you even i think but it's your thing your complaint right that's what you said in your complaint but the rate was suppressed yes the raid to suppress but doesn't mean that she received the benefit of that rate it isn't that that this is the suppression of the rate doesn't lower the amount that she was indebted to these are sub prime mortgages they're designed a little bit different as a consumer we often believe this is the question you're asking me but these are sub prime loans and although it sounds that way that isn't actually the way the actual debt is incurred they get actually is a higher rate than the actual libre loan rate but what they're able to do because they put the loan into the mortgage backed securities trust while suppressing this rate is there were two things the consumer who thought she could flip out of this loan could look in the newspaper and see these are what the market rates and current index t bill is another common one when you look at the real estate section you see these interest rates these are going interest rates you see that these are the market rates so there is a reasonable expectation with that lower suppressed rate that she wouldn't be stuck at this high eight point seven seven five percent because we're talking about someone who is fully employed had good credit there is no reason for her to have a subprime second thing so we have this consumer consumer expectation on one side that you can you can flip out of this but you couldn't ever flip out of it because there wasn't any competition there to flip out of because all of the you know what made her think that she could slip out of it because when you look in the newspaper and you see what the market rates are they were they were low  see ok these things are offering these interest rates in the see what the market rates are that is what consumers do when they're when they're shopping so i want to make sure that i understand exactly what her and i trust injury is here her and i trust injury is that she accepted a higher rate on an interest only loan with new century premises that within some amount of time she would be able to acquire a lower interest rate loan from somebody else and of those and those rates were misleading because of the allow somebody who didn't even acquire a mortgage at all to come in and say i thought that something was going to change in the in the future and so i didn't get into the market because because there was this li sophisticated complex financial structure to begin with so it's not like we're talking about nike tennis shoes or you know playstation or something that's a little bit simpler to put your mind around but when you have that's why you have to look at both sides of this transaction you have to look at what the rate is was an application made for a mortgage the application for the market was made in originally in two thousand and four and that's when she received her first library loan so this was the first flip from the first library loan to the second  process and she was approved yes and all of her assets structure income and everything was all part of the application yes and it was she didn't have to pay anything on the principle that  capitalize they capitalize upon each other so although you're reading something at the top in big bold letters that sounds like it's pretty straightforward your interest only of eight point seven seven five percent it doesn't mean that the eight point seven seven five percent for those first two years covered what the bank said was your monthly mortgage obligation to them so then every single month a chunk of that money actually gets added on to the outstanding principal regard to how their how the mortgages actually worked so so it's our position that says they have the burden of proof a motion for summary judgment to bring in the experts to explain and not to allow the court ready to readjust in two thousand and six and under the court's theory if the loan if that library rate was lower it sounds like then her mortgage payment should have went down but it didn't it was going up because this is how these actual prime loans work that's why she needs to go ahead and grab the eight point seven seven five percent refinance in two thousand six hundred libel or the new refinance with a lower monthly payment than what she would have been paying in two thousand six an interest rate adjustable library loan that she had obtained in two thousand and four that was running on the actual adjustable interest rate so maybe that's a better way of back ending it for the court to understand that although it is a lower rate it doesn't mean you're getting the benefit of the bargain and i hope that that that kind of help than the back and we also have the arguments that you're pressing right now all go to your other trust   we didn't mention the case and there is concurrent jurisdictional and twenty eight u s c thirteen thirty four does give concurrent jurisdiction i know that there was one case that was fully briefed for this court it is completely in a positive on the facts because we're talking in that case was a state court prosecution case and they were asking you know whether or not there was jurisdiction or whether or not the bankruptcy court had  jurisdiction in that case it did because it was apples and oranges but this ninth circuit already ruled that under the eleven eleven you a c three sixty claim could go forward so that should have been of the case we shouldn't have had to have come back and done a jurisdictional argument on and again i think it was at least waived they should have brought it up at the first appeal if they wanted to make that argument that we also had the issue of of good faith and fair dealing when you're looking at the breach of good faith and fair dealing there are two different elements they say the defendants try to narrow it down saying that eleven u s c three sixty two  act in good faith and by selling using invoking the power to sale in a non judicial foreclosure forum knowing that they weren't supposed to then we have a breach of good faith and fair dealing with regard to the in the you know what the supreme court was deciding whatever it was deciding with regard to jurisdiction it is back now and it is live in new york it's only against bank of america it's not against our defendants there they have passed a motion  product the they didn't revisit the end i trust issues because that court had already kicked it a long time ago kieta down the road so but they did revisit the fraud issue and they did find fraud there so in a comedy of walk through the various grounds on which this court should affirm dismissal of all claims against barclays i'd like to emphasize the fundamental deficiency in this copays case which shows why all of her claims  theory of fraudulent inducement i think we heard ms albert just confirm that up here and that was based on this well opens allegation that she would not have purchased her live or linked mortgage loan had she known that live or was being manipulated and the court recognized at that time that miscall ok had never made a single lie borges payment on her loan and that therefore she had not suffered an injury in connection with payments she made on her loan but instead had adequately alleged purchase time injury one i feel mean when she was fraudulent lee induced into executing her along with new century mortgage corporation in december of two thousand and six now in turning that miss colo could proceed with allegation in the complaint that new century somehow acted as barclays agent when it dealt with this call obey but your honour's that allegation has been thoroughly discredited that summary judgment mis kobe has failed to reduce any evidence whatsoever in support of her allegation that barclays was involved in new century sale of miss polo plays long let alone that miss excuse me that new century was acting as barclays agent when new century actually engaged with up moreover barclays submitted affirmative evidence proving that new century was not acting as his as its agent or that new century was making any representations on behalf of barclays on those facts judge amounts to a claim that she was unfairly duped into executing a loan that she would not have executed had she received adequate disclosures but that claim of course has nothing to do with the harm to competition indeed is the location fails to show how her claim flows from any competition reducing aspect of barclays alleged conduct and that of course is the essential element that a plaintiff needs to show in order to establish antitrust injury miscall of a has not shown it because she did not suffer antitrust injury now recognizing that failure misspoke a summarily argues in her papers that barclays libel related conduct somehow constrained the residential mortgage market in southern california and theory although vaguely defined  something like this barclays libel related conduct somehow prevented mortgage originators in california from originating non live or linked loans and therefore that functionally forced her into entering into a libeling  judge carney found below there's not a shred of evidence in the record for this theory and the actual theory has no sort of factual basis there's no logical way that one could explain how this conspiracy worked and in fact consisted of over five thousand loans and says that almost half of those loans were non live or linked loans thereby by her own argument she makes clear that borrowers to whom she was purportedly similarly situated had no problem obtaining a non barclays conduct and mr lopez injury is too remote indirect and speculative fiction for and i trust ending on this globe and that conclusion is relatively obvious you're ours considering two main facts of record mr located did not tr barclays when she purchased her loan and she never made a single library based payment and on those facts it's simply not credible and certainly there are no facts of record to support an argument that barclays libel related conduct proximately caused her district court miscall ok expressively abandoned her fraudulent omissions theory and decided instead to proceed only on the affirmative misrepresentations or i will nonetheless walk briefly through the fundamental flaws with both but i'll begin with the affirmative misrepresentation theory that she actually pursued in the court below now miscalled ok argues that the misrepresentation in this case was made in the note itself now at page forty one of her opening brief miskolczi claims that the note says that the adjustable rate on her loan would be based on libel or and this will obey says that the note characterizes library as in quotes an independent market rate the problem here is that the note makes no such characterization that language exists nowhere in the no simply states that at the end of the two year fixed rate period the interest rate on her loan would be based on libel as published in the wall street journal plus a margin the note neither represents a library would be calculated nor characterizes it as an independent market rate and simply put there's no credible way to read this language as a guarantee that live or would be calculated free of manipulation judge buchwald the judge overseeing the great majority of libel related litigation in this  country came to the same exact conclusion when analyzing virtually identical contractual language in the multi different litigation put simply charged up all found that this boilerplate language could not be seen as a representation and the same result should follow here and i should just remind the panel that even if the note could possibly be read as a guarantee in any way that would be a guarantee from new century not from barclays because again it was new century who was contract ing with m now moving to the fraudulent omission theory or honors it's not surprising that miss hope a stepped away from that theory because that is doomed to failure because under california law an omission is actionable only when there is some relationship between the plaintiff and defendant in which a duty to disclose can arise and that can only come into being when the parties are engaged in some sort of transaction now again this whole ok had no relationship whatsoever with barclays in december of two thousand and six when she entered into a loan agreement with the new century and any omission therefore would fail as a matter of law finally with respect to reliance and this really applies whether we're talking about an affirmative misrepresentation or omission failed to show that she relied on any libel or related representation or omission and her entire reliance argument hinges on a conclusory self serving statement in her declaration that she would not have purchased the loan if she had known that someone could try to manipulate the library but that assertion without more your honour's is insufficient to withstand summary judgment and once again misquotes own representations undermine that argument miscall up a ledge is time and again that when she  tained her loan from new century in two thousand and six she intended to refinance or debt within the initial two year fixed rate period of the loan before she would be required to make a single payment tied to libel so the idea that  libel related disclosure would have been the tiriel to her considering she never intended to make a library based payment is simply not credible there are certainly no facts of record to support and finally honor with respect to mr lopez implied c claims or her claim that claim fails as a matter of law california law is clear that an implied covenant claim cannot live based on formation of a contract there has to be a contract in existence between the part things here considering the scope a sole theory of injury that she was induced into entering into the loan that presumes that the contract occurred prior to the formation of the contract so an implied covenant claim can't lie there and secondarily again that so if if if we were to decide this case and i know we have some of this standing question about deutsche bank but setting that for one stock to one side if we were to decide this case in favor of barclays does director bank come along for the ride about that so judge judge kearney applied the specific jurisdiction tests that's been articulated and actually specifically looked at the express aiming requirement set forth in cases like college source and washington shoe and he specifically asked whether the defendant is alleged to have engaged in wrong wrongful conduct targeted at a plaintive who the defendant knows to be a resident of the foreign state and judge clearly very carefully walks through in his decision the analysis there and said the complaint contained quote contains no allegation that do it to bank expressly aimed at any of its wrongful acts at california or had any contact with a plaintiff section twenty two is an interesting question i don't think you need to reach the question about nationwide contacts because it's i don't think it's properly before you miss the locates counsel raise that issue the very first time in a reply brief  was this this is only then raised and the proposed fifth amount of complaint yes that's correct and she she actually in in her motion in her reply brief in support of this x party application to file the fifth amended the proposed fifth amended complaint that's where she first mentions the sec but i will add one thing your honor which is you could look at those all those same paragraphs in the complaint the jurisdictional allegations in the fourth amended complaint the actual operative complaint and you would see that there is no nationwide context here even if you were to adopt argument in the papers about whether judge kearney was right to have denied that ex parte motion for leave to amend the complaint and i wanted to note a couple of things first of all that issue actually isn't mentioned in the summary judgment motion and it's very clear if you look at it it's in the excerpts of record it says in bold letters all caps denied without prejudice and he set forth a path for me to follow in order to amend her complaint and she chose not to do that she chose instead to stand on her complaint and he and that's where we are that's why we're here where we are now and then lastly i'll just say that judge carney was at what he did made sense because because he had a barclay's motion for summary judgment pending based on the fourth amended complaint he had from from had a motion to amend the complaint and i think he very as a matter of case management said hold on i'm going to decide that the foreclosure the claims that were alleged against my client there were three of them in the proceedings below are much simpler than the other claims that have been before you in this argument there are there were three claims two of them were based on state law one u c l and one the duty of good faith breach of the duty of good faith and very dealing and then there was a claim under three sixty two k for violation of the bankruptcy state all of the claims were brought you know specifically alleging that the reason for the claim was the defendant's conduct in foreclosing on the property after there had been a dismissal of the bankruptcy but then it was reinstated i think one or two days before the foreclosure trustee sale so there's a question of fact whether there was a willful violation there that's a question of fact that's not before your honor's because a motion to dismiss was brought in the core agreed that the state law claims are preempted and that the three breach of good faith and fair dealing in her appellate breath and thus our exploration is really dispositive on that issue and the district court cited it that case specifically talks about when a claim is preempted under bankruptcy it it talks about the fact that bankruptcy courts all that courts have recognized that there's a strong importance in uniformity of bankruptcy law and allowing state law claims that are based on conduct that occurred in the bankruptcy proceeding not only dispels that agency relationship we filed evidentiary objections to that type of improper evidence before the court as a declaration because that is a question of law not something for an employee or former employee of barclay securities trust came from barclays so the fact that's why they're loan sellers because they just basically were salespeople sitting in their own desk with their own unit getting get given the money to make the loans from barclays from the trust and they also were given the loan products these actual notes and there was no never any evidence or explanation by declaration by the moving parties who had the burden of proof that it was otherwise with regard to suffered no injury we have a debt here that's incurring libel or so you can't say live or was never a issue in this case with this purchaser she had that debt will show up on her credit report it will show up in the bankruptcy proceedings to how much that is accumulated when you have a financial transaction isn't just the purchase of the product it's also the debt that you're incurring with regard to the quote on page thirty seven actually said half or library rate loans like plaintiff's loan in this case is actually approximately seventy percent where the fixed rate live or and then twenty six percent or the adjustable rate life or so i didn't say that these loans person that they're getting the credit from is going to actually manipulate that rate why would you that's just not reasonable consumer expectation by anyone and we have to live in a world where we need to utilize credit in order to survive and for these kinds of transactions especially long term one like buying a home with regard to do it frank agee yes my time kind of ran out on there we do have jurisdiction here although i did i did not waive it just because i put in the reply brief below as far as reconsideration goes the reconsideration did not say that i could file a new motion to amanda reconsideration was did was not a large it was just that there would be new facts or new law and i was not given i asked to get discovery i was not given the ability given discovery we had i have was facing a motion for summary judgment motion where i was not allowed to have discovery opened in this case and i think that that offends the notion of due process in the federal court i'm asking to i'm they're saying that they can file conclusory declarations and then as a plaintiff that's not being allowed discovery for a sophisticated financial institutions that somehow we're going to be able to revive what they're saying with stuff that they have i their own personal knowledge but i don't think that they even met their actual burden on their motion for summary judgment fifteen u s c section twenty two i think creates a big obstacle for them again everything the timing of it was very fast and furious in the court below after the first round of appeals there is evidence here we've filed a very large excerpts of record and i pods as the court for how actually contradicts what we brought before this court that there is was concurrent jurisdiction especially after the ninth circuit had he said that we couldn't forward in the case and i'm not sure why we keep on coming back to the same kind that to square one in maintain their relationships with each other as financial institutions as a matter of fact our financial institutions have become more concentrated over the past almost ten years and there is no indication