morning think your honor it was court my name is brad klaver i represent the appellant marry me out your honor i don't typically start an argument by telling the court what my case is not but i know that this court has seen a lot of this type of litigation over the years and i would be very clear at the outset that this is not a case of a disgruntled homeowner who is shouting show me the note who thinks that somehow some way the constitution must entitle her to a free house this is not that case and this is not a case for my client is asking the court to give her a free house mary may not simply wants her day in court and this court can give her that without reading any new law now the th circuit has already reversed remanded this case once to give my client that opportunity and given the numerous undesired questions of disputed fact in this case the court should do so again now we get into the dispute of facts but what is undisputed in this case to concern this court very deeply  it is undisputed that for many years of litigation this case a us bank and wells fargo have represented to multiple state and federal banks in federal courts excuse me that no document existed to sustain my client's claims in this case when in reality that document did exist and was concealed in a professional it is undisputed that by falsely denying the existence of that document they have successfully misled those same courts into barring my client's claims of the credit gree undisputed that u s bank admitted under oath to never having even reviewed my client's case before or even after filing multiple cases in its own name to have her victim from her home so these facts are very troubling and explain why this case is still going on after all these years but despite these undisputed facts the district court took it on itself to resolve three disputed questions of fact and it did so by either misapplying or or  and it if you don't mind i just want to ask you one question about that even though you have certainly alleged emotional distress at a number of non economic damages in the response to the summary judgment motion is it fair to say that you did not include a declaration or affidavit about any emotional distress damages or to present any evidence that her non economic damages w exceed what he called the rental value of the home in other words to be able to live in the home for ten years without paying that why it was why would that not independently require a firm it's even if benefit that she there on which is the kind of odd weight of the court acknowledges that she has pleaded the damages and then says you know but i find that because she doesn't have enough damages that i will conclude that she doesn't have any damages i would say that's a question of fact with the  this i think the record does speak for all of those those types of damages that were alleged and again as i indicated that the sort of weighing of of one versus the other i think it's more appropriate to question for the jury foreman whether those damages are insufficient to outweigh what the court described as the benefit she derived from being in the home and i would also point out that the state court even acknowledge that that man made a substantial benefit for the banks by keeping the property   it instead just sort of said well i i think what this note means is that they would have considered her if she had met some other condition which is not really what the no means at all so i think that is you know we can set aside arguments of counsel obviously it's our job to disagree but when you have an undervote an expert witness or that knowledge is an expert in this field and the court is unilaterally overruling that expert's opinion on these matters and then there's no question of fact here i think that's you are now focusing on your characterization of it here goes towards the nature of the alleged gene if you will that was undertaken by wells fargo it doesn't go to the nature of whether this particular writing is  the green and that is really the pressure old issue that you have to overcome under the statute from what statute and so one has to the district court addressed that threshold issue and was asking whether in fact you could say instance when she was instructed to the banks then proceeded to mislead and cover up for this and deny its other boards that night in writing to matt herself for three years there after they you know have have question of fact i guess i have two questions that as it relates to that one did you make such an ambiguity argument before the district court i don't see any indication that you did and to if you had if there is anything that that even approaches that ambiguity it would seem to me implies ambiguity as it relates to the terms of an agreement the district court says that the threshold there is no agreement so there is nothing to be ambiguous about so deal please with the st question in the  appeal which is our route break the law you to get out of this well get out of but to address the situation where you didn't raise something before the district court so if you haven't done either one of those things it seems to me that you don't have any in our discretion you don't have any reason why we have to ere was a foreclosure order so they were very clearly not making reference to any non economic damages below and as far as the three hundred and ten thousand dollars of benefits in ms may not that's really sort of a comfort argument it's an underneath extra layer argument but they've not pointed to any of the species of economic noneconomic damages excuse me which are cited in their brief brief page twelve they have the full a lot of credit injury lost opportunity reputational harm emotional distress the full panoply of those things but none of them are sought to be evidenced in their brief in this court pages fifty five to seven none of them are evidenced in the motion for summary judgment response below at appendix one thousand one hundred and eighty one so there really is not something there the court also was not applying really a back of the envelope calculation as counsel suggests the three hundred and ten thousand dollars of additional value to ms may counsel began by saying you know this isn't a free house case and i understand these are difficult cases i'm not trying to make light of this all these are important things for the people involved you know we get that but ms mayor did stay in the house through two thousand and nineteen and did derive a three hundred thousand dollars benefit from staying in the house and when you consider that there's not a quantum of damage which is indicated by evidence i think that's significant in the district court properly looked at that benefit in determining that there was no issue effect concerning damage here and the way it derived it was from a number provided by ms mae out below which was in a response to a motion dealing with the house of bond she estimated that it was worth twenty five hundred dollars as a month as a going concern is a matter of rent and that's a page appendix one thousand nine hundred and seventy four so that number was not pulled out of the air it was a fair number it was ms may also number and she did derive some benefit through the circumstances of this which you know we we actually don't need to look at the three hundred and ten thousand dollars i didn't find any damage to her all is that what you're saying i mean that that three hundred and ten thousand dollars i guess you're saying it was calculated but that doesn't actually that isn't evidence unheard yemen's she has to show damage and issue is if that's the argument yes your honor i apologize for being unclear  i'm making sort of a two layered argument here the st layer which is the one i think that is dispositive of the issue is the one that emerged from judge bacharach's question and it precedes any consideration of three hundred thousand dollars and i'm just saying that she did not preserve any argument for non economic loss damages she did not provide any evidence that the pages that i cited she did not provide any evidence to this court in the pages of the brief that i cited and then i said separate and apart from that which i believe already decides the issue there is also in the absence of any demonstrated quantum of injury through non economic harm the st part of this i'm staying additionally the court properly noted that she also derived three hundred and ten thousand dollars of economic benefit from the house so hypothetically if my friend on the other side had pointed to one hundred thousand dollars of actual loss which is not the case there is none then if you were weighing it she would still not have had a net loss that's all i'm saying is a very minor point your honor  confused as the declaratory judgment claim at this point in the case your honor because all the claims that are extant are damage oriented claims and so she's not seeking at this point a declaration that she owns the house so i'd have to consider what the object of the declaration is which is sought because the extant claims that we're analyzing all have damaged tails on them as i understand it but you're correct your honor that damage is not an element of a declaratory judgment claim presenting absolutely well  i'm not sure how we could have for somebody just but award on this theory saying there is really no need to prove compensatory damages were declaratory judgment but there is no valid declaratory judgment kwai because it doesn't fall within the declaratory judgment understand your honor and i think that the remaining legal arguments dispose of all the claims i think for example the fact that the special forbearance agreements of tw ten necessarily supersede any supposed agreement to modify would prevent there being any declaration in favor of ms may not and it goes to my way of rebutting my friend's remarks he indicated that wells fargo had this call no which let's remember  september two thousand and eight and then he said the bank said about immediately foreclosing their of course there are many many years before there was a foreclosure and the forbearance agreements were in two thousand and ten so fully two calendar years later you have ms may at signing and you know ironically to weigh that much more clearly speaks to the statute of frauds she actually signed the writing that she would be charged with write in both april of two thousand and ten and november of two thousand and ten saying the underlying note in deed of trust instruments remain of full force in effect there could be a foreclosure right then if she signed that the bank was waiving no rights and that those things remain in effect and so those understanding's necessarily would constitute innovation and supersede any claim to contrary understanding that because in this case she's claiming a tort that flows from an alleged right to do things and under applicable provisions of law she had no right to do the thing that she claimed the call not conferred upon her right to do she no longer had any such right she had no longer had any reasonable expectation and you can't be an derogation have a duty to do a thing which the law plainly provides that you have no obligation to do the call no i mean his entire argument about the call note is that it creates a reasonable expectation that she had an understanding as to what she was supposed to be doing and you know additional to that as far as the call note goes i'd be remiss in failing to mention that she is resorting to her own extrinsic evidence to try to construe the column though in colorado law is very clear  cheyenne mountain school district that she can't do that she can't use her own extrinsic expressions of intent as to what she wishes a contract would mean to construe that contract and so the call no it doesn't become in big us it is as judge holmes properly noted skeletal it has for example no reference in it whatsoever to modification it doesn't say we're going to modify it's a bootstrap the circular question begging argument at best because it basically says and both sides agree it refers to if you delay a payment there could later be an application of the payment but that doesn't mean that you're going to be given a modification under which you you'll later pay and again to the point of counsel's argument where he contends that there was some sort of immediate negative action against m following the call no and that somehow you're supposed to bootstrap back into the call note that there was you know a misleading going on very far from it there were the t p p processes and payments accepted in two thousand and nine there was in tw pair of different forbearance agreements so there was a multi year process of giving her lower amounts to pay a lower threshold to hit asking her to hit that asking her repeatedly to apply for purely discretionary modifications so there was nothing compulsory in the call there was nothing contractual in the call note there's nothing and also the fury of the caller is internally contradictory because she'd already missed two payments his theory is that if the mystery makes three think she'd already missed two at the time of the note which she claims confers a contractual obligation upon the bank in between those parties so again the record just does not support that so the calo does not satisfy the c c f in addition the fact that it's not sign it also is insufficient clear it's thought to be made in big us when it's not ambiguous terms or sought to be packed into it that don't belong there and miss me out to as a sophisticated party as well and she opined at appendix one thousand nine hundred and sixty six that she has as she has a successful business person and she  had clients of her own and so you know we understand the difficulty of the situation for a homeowner we really respect that but that doesn't turn this into a contract when it's not it doesn't make it clearly have terms that it does not have rather different nd i just want to make was on that if there positing that that was the nature of the contract it could be the case because she had already done something you know what in other words it was an agreement that you missed three payments and then you get a modification because she had already missed two payments at the time that this communication took place is that the point you're making are just want to be clear what you're getting at yes judge holmes if that's that's pretty much precisely it that she had missed two payments and so to point  missed two payments and say aha during this call because again it's really important in terms of the statute of frauds that the writing is supposed to be the agreement that's the whole point of having a writing parties are supposed to sign it it's supposed to have precision in terms of the meeting of the minds that the judge was properly concerned about below and so how can that happen when you're already two of the three payments down the road two i missed i missed it just it doesn't add up it doesn't conform to what we understand to be the purpose of mutual opposed to you missed three payments and you view this it would be you miss one more payment because i'm looking at the screen showing bartie missed and therefore then we'll add why i could not be beneath the green well i think because i think judge holmes the words don't form a picture that sufficiently clear to say that we will do this it says if you miss you could apply that to a future to a future down payment that doesn't mean that a future down payment is then promised to be given i you later could use it in fact this may i may have used it she may have used it in her t p payments she may have used it in her forbearance agreement payments i don't know how that water flowed down the river but she had the opportunity later to use it in service of trying to preserve her existence with the home it's ability called of at least ambiguous in terms of whether it's confirms this may interpretation because the call the doesn't say obviously together financials give us a call back once to make a payment advised to hold onto it and use as additional downpayment that could plausibly big interpreted to mean that you will have an initial down payment because we're telling you hold onto it don't pay now you're going to get a loan modification and you can now use this as an initial down payment why isn't that at least a plausible confirmation of her understanding of the oral agreement because a statement that if you have in the future a down payment to make you could use it for a down payment it's just completely silent on the question that you will be in the situation where you will have a future down payment to make that's that very point that your question puts the finger on presses at judge bacharach is the very thing that is empty in vacant and missing from their analysis of this there's nothing in there that says you're going to get it it's that it's a possible thing and that was a general industry wide guideline and that you would be reevaluated under hamp and under other programs for when we were going through the great recession you'd be evaluated for the chance to have voluntary extensions and voluntary help from the banks if you had missed a certain number of payments so it wasn't in title meant it never was and in title meant it was it was this is a classic no good deed goes unpunished i mean it's really unfortunate that sixty percent of the people in hamp could not qualify because they weren't able to have the financials to have the wherewithal to make the payments we wouldn't want to live in a world where banks don't want to have him or banks don't want to voluntarily offer extensions because if we say you might becomes a contract people in the next financial crisis can offer those benefits to people voluntarily and to work cooperatively outside sometimes outside of government or with government and i think that they'll be a very bad space for us to operate in your r as far as economic loss doctrine goes there are no extra contractual duties  that are referred to here and this is another waiver they did not mention economic loss doctrine appendix two hundred and thirty six thousand seven hundred and sixty eight dollars which is where they say they preserved it in response to our motion just as they did not provide evidence of damages and did not provide argument to confirm if i said they had given her prior about missing the three months if she had just made a payment just barely a month before when she was instructed to not make another payment so this timeline that she was you know already well into fall by that point is is not