view but it is still a twelve piece explosion the question is does it fail to stay to claim in this case the court below erred because it concluded that we fail to state any claim  all we have a situation where the document i forgot to mention i'd like to reserve five minutes for i watch the clock and i'll try to help the court below simply fail to recognize what we're alleging here is something very different than has been decided by any appellate court in the circuit the first circuit has looked at this question the question isn't as so many people have argued whether a trust securitized trust can  receive a mortgage assignment after its closing date the question is did the ass and nor have something to assign when it assigned it fundamental problem that you'll hear repeatedly in the presentation of the defense is they speak in the passive voice they say this was assigned and it happened without saying who did what fundamentally we have a situation where the originator of the loan no longer has any interest whatsoever in the loan the banks have made a lot of money by telling investors that that happens that these are true sales they're complete assignment happened years before when they created the trust and yet they turn around when it's time to go after the defaulting borrower and they say oh we got this directly from the originating lender the two statements cannot both be true  unquestionable that that means every test for unfairness under the statute and case law interpreted in chapter four eighty so the argument then becomes well they could have done it they could have foreclosed anyway because they held something even if they didn't get it from this false assignment they got it some other way they got it back in two thousand and six or two thousand and seven but that really doesn't help them run begin to accrue in this case was the date on the that the property was noticed for sale or was it when the auction occurred and what is your best authority for whatever a he concluded that as judge seabright did in something below that the relevant date is the date of the auction at the earliest i think that judge ferris left open that it's actually the day when two things happen after the auction and the reason i say this is because we're complaining of a heart we have to have a for a claim and injuries a necessary element of that claim and that was one of the major errors that the trial judge made is saying oh it's not an element it's just a pleading requirement i still don't know the difference but because an injury is necessary the plaintiff has to have lost either title or possession those are the two interests that they have in property those cannot happen before the auction all right they do but the auction if i could add a little bit more under hawaiian law the foreclosure is not complete or effective unless there is a recording of an affidavit and be a deed let's say it's the date of the auction which would presumably you know at that point what the sales terms were and you know whether there was an injury you being a borrower yes that right yes and i guess the argument on the other side is no no it's an earlier date but it could possibly be told what is your response to that well when you get into that you get into the samsung case and we're not really tolling is our third line of argument and i always feel if you have to get to tolling you're on fairly thin ice already if you don't have in the us we don't really need to the samsung case came out after judge judge kobayashi ruled here apologize i have three of these this morning so they're thanks in up a little bit judge kobayashi same boat yes yes well you have six or seven today so it's even worse are on friday i'm sorry i lost my train of thought your quit claim deed yes and if i understand your argument it's that you're claiming it's an unfair practice to use the quit claim deed correct yes all right and my  my concern about that is i read the statute is there anything in the statute that says you you can't use a quit claim deed know there is an on but the one hundred case ta specifically about it it didn't reach the quick no in fact it specifically reserved that issue well what happened was the trial judge agreed with us so she wouldn't dismiss that claim so that she certified only the dismissal of the supreme court so that it's not a footnote but it's actually a decision under state law rather than having a federal court decide this important question of state law we would have no objection to that certification i would just  unpublished decision i think that cited in our twenty write a letter to the bald case they remanded the case follow we understand but that's and i'm published this under suspension and so we don't really have any controlling authority either from the state of hawaii or the ninth what i was going to say about one hundred is they were very clear that there is this and they repeated in reiterated what they said in the condo or case when they revived the vitality of all rich case they said look you have a duty to use your best efforts and if you offer something that doesn't even warrant you have the authority to sell you are simply not using your best efforts so although the statute doesn't express lee require it it seems to me that it's certainly plausible that it's part of the duty to use your best efforts to get the best price all right you want to raise their i mean i would thank you good morning in may please this honorable court i'm playing rogers on behalf of us bank as trustee opponents counsel is here three times a day but he has about somewhere in the range of two hundred or so of these types of cases in whole state in federal courts and i would propose to this court today that this false assignment theory is in fact the weakest of all the theories and some of those theories have in fact been validated as we've seen and as the court recognizes by in one game in some of the others however this case presents a markedly different picture and it's one that is answered by existing what you law and is not in any way impacted by the most recent cases and there are three primary reasons for that it's actually there's one primary reason and that is that it seeks to give assignments of mortgages force in effect that is not contemplated by either whole what you statutory or case law and there are three reasons underlying that proposition they are these number one the uniform commercial code which is in effect in hawaii recognizes that either a holder or a non holder in possession with the rights of a holder is entitled to enforce and it's the entitlement to enforce as this court has recognized and i think it is the seminal decision discussing these points in the viel case it is the person entitle to enforce that instrument that dictates the enforceability of that note and the mortgage that goes along with it number two white common law has long recognized almost as long as all rick now we now we know recognizes the duties of a non judicial foreclosing mortgagee what you case law recognizes as does others that the mortgage goes with the note as a matter of law and then number three let me add to the number two as well as far as the statutory authority h r s five zero two eighty three does not require assignments of mortgages there is no statutory requirement that assignment of mortgages be recorded in the state of hawaii and the number three the non judicial foreclosure statute six hundred seven dash five which is at issue here and which is subsequently repealed as this court i'm sure is aware didn't just allow a mortgage e as appellants briefing would suggest to foreclose it specifically says a mortgage or its successor in interest so if you take those three legal underpinnings that existed in wha and continue to exist in a way law existed at the time this case was decided and combine them with two key factual allegations here which are number one the concession that the note was transferred via the p s a well before this is sign mortgage when it was recorded as well as appellants agreement in his mortgage that he did not have to be notified of any transfers combined those two factual allegations which are undisputed with the three points of law that i just recited for the court and appellant cannot state any claim you cannot state a claim that there was a wrongful foreclosure or an unfair practice when the record reflects in the law supports the proposition that that entity was a person entitle to enforce the note under the u c c to hold otherwise is to toss the universe or uniform commercial code out the window and we know better than that because we know is this  found that it is in the veal case and i would also offer to the court i believe the second circuit's analysis in the rajam and case is also very informative to how these issues should be looked at the court has raised some issues that i'd like to address with respect to the current cases the most recently decided cond our hunger those are not a political because those are different kinds of cases the theory at the beginning of this case was that the bankruptcy trustee the liquidation trustee did not grant of authority to assign this mortgage well that disregards the fact that of course through the pooling of service agreement which appellant put into the record object to the plausibility standard but i would offer to the court if you try to avail yourself of the type of pleading that was done here where you don't specifically enumerate your claims and mush everything together then you can't complain about the court's not necessarily understanding all of the things you're trying to allege but to the extent it was understood the initial complaint was clearly predicated on this bankruptcy theory that's a theory that has been routinely rejected and i think both i think judge gilmore's opinion in the lizard case which this  it prohibited amendment mothers i p e a claim i don't believe so your honor i don't believe it abused its discretion with respect to any claims it was oddly postured procedurally your honor because as i was saying the first complaint alleges the bankruptcy theory it dropped in in one sub hair graph it dropped this theory of it had enough that the bank didn't tell the truth about the other the path that the loan had actually taken first amended complaint then brings that theory to the forefront and that was the scope of the leave that plaintiff was allowed is to remedy the initial infirmities in the complaint he then moves and is granted leave in part to amend he is his his underlying theory from the first complaint was in a same thing basically that's correct your are more or less the same thing you just elevated the one above the other and it sort of pushed aside the bankruptcy theory i think that there's there can be no abuse of discretion here because what the proposed second amended complaint did was it really sought to wreak eric drys this whole case which goes to my point about con down one hundred as well as this those cases are chilled bidding cases they have nothing to do with whether someone has the right to enforce the note that was the basis of the foreclosure which is here so this court need not be concerned by cond hour and hung get a light because those cases have always been about the bank doing things not in conformance with the statute failing to give notice and saying hey look you owe a duty to do better and you owe a duty to make sure there's enough people there to encourage active bidding to obtain a reasonable a reasonable price under the circumstances that's that was never the theory here so in your view there was never at yri unfair practice or deceptive practice because a quit claim was being used not until the proposed  in the proposed second amendment complaint that's on the table well and i would point out to both your question and judge nelson's questions that the quitclaim theory existed years before he tried to amend it in the second amendment complaint and what i think you see under rule fifteen is a clear undue delay we know and we know that theory existed why because this court has seen it in lima and debo and bold which were all cases brought in two thousand and twelve so what i see from  pleadings is a concession on the on the one hand that the bankruptcy theory was not going to work then he tries the second time around to propose this oh you have to tell me all the all the steps that the loan took in the assignment notwithstanding the u c c notwithstanding wh common law recognizing that the mortgage travels with the note and instead we're going to go back to these other ones that seem to have gotten more traction your position is that the second amendment second amended complaint was too late in the game i believe so i believe a new analysis under rule fifteen makes it clear that the judge was well within her discretion particularly given the limited scope of leave that she granted to stay within the bounds i do not think rule fifteen contemplates changing changing the theory if you know if you don't think we need to even get to that then i don't believe so you relate i don't think so i think existing hawaii law as informed by this court's decision in feel and the second circuit's decision and rajam and provides the guidepost for how this court should decide which is if you're entitled to enforce and if your theory of the case is stablish is at minimum that my client was a person entitle to enforce the note at the time foreclosure was conducted then you cannot have a wrongful foreclosure claim and you cannot have an unfair how how does it violate public policy if it's in compliance with the law i have if that if your analysis is correct the statue of limitations that you just drops out well i think as this court is where it can it can affirm on any basis under no no review i think the statute limitations question is a complicated one and i in preparing for this argument i went and tried to find new twenty four and i can assure this court to the extent my research skills remain decent there is no nothing beyond what the federal court has really provided all of the input on with respect to that statue limitation what you're left with  intermediate court of appeals i did not provide a letter once again stating that it accrues at the time of the violation i don't want to disagree with judge she writes decision but i don't think the court needs to reach the such limitations question to decide this case in on behalf of our client  addressing this question of the u c c the complaint as amended alleges that they did not possess and endorse no and the assignment was all they then tried to say well we we got  it through the securitization process back in two thousand and six through all these various chains so we we did have it the problem again as i said at the outset as a rule twelve b six motion and it's not apparent from the complaint you certainly can't offer f c c documents to prove the truth of the matter on a rule twelve motion i'd like to address also the question of what he calls undue delay the undue delay is in the briefing schedule of the lower court and this is a rule twelve motion brought instead of an was actually at the outset they don't i don't think they even responded to that it was done right away that that was the first one done if i recall and i may be mixing my cases up that was done within a very short time  after the complaint was filed and before anyone responded to it the motion to dismiss was for the first amended complaint and then the judge gave us leave in hearing that motion to do the second discovery hadn't even started i don't think we even had the scheduling conference with the magistrate so and if we did nothing had flowed from it so we have a situation where we're being penalized because the court takes forever to decide these things but i don't think that anyone can say that there was undue delay because we didn't raise it in the first instance we were focused on what we thought was the wrongful assignment claim and the judge his position was well if you have something else put it in and we did have that we've raised it in other cases and it's been up held on appeal the other point i wanted to make very briefly is that again we have this problem that was exposed in compton versus countrywide that people are not treating that you doubt statute separately from other legal requirements and you can use we will still ask the question no matter what standing rules you apply or no matter whether you held a note if you put a false document in the public record and use that as an instrument of your foreclosure is it an unfair and deceptive practice that's not decided by the u c c or by anything else that's decided by a jury that decides whether it's unfair thank you thank you it's just argued is submitted thank you for your argument