many many many many independent issues here i hope i'm prepared to discuss them all with you or whatever you want to discuss but i would start with the contract at the heart of this case you are one fifty five bank and there's many many published cases that deal with this trial plan and they all reach the they all say the same thing which is that the t p is a contract that promises permanent loan modification subject to two conditions precedent neither of which is actually qualified actually qualifying for hamp you can't win in this case either on breach of contract or promissory estoppel if you don't qualify for the half no lenders obligation to perform under well the d p p provisions said he will execute the d p p only if you qualify you will receive a ham modification only if you meet all the requirements for requirements three times have said that that was the same argument that wells fargo made in corvallis no that's not the problem that i have is if in fact that's the case which i could find no case to suggest you're going to win if you don't qualify for em your honor i disagree in what's the case why god at page five sixty two wells fargo argue that what the case why i don't think wideout says that oh it absolutely does well tell me way and why i got all fargo's argued that the the that the t v motion to dismiss that the p p allowed the service or after the borrowers returned to sign t p p and financial documents that the service are needed to be determine eligibility t the ham modification if the borrowers did not qualify that's what i got says in my book i disagree i'd ask you to take a look at page five sixty two of i got on page sixty two and on the first second third paragraph you have a k in front of you obligation to modify was more which was also contingent on his determination after the trial period began that she qualified under hamp guidelines yes that's very conflicts with the plain terms of the t and the facts seem to be wells fargo communicated to why i got that she qualified for hamp and that's the distinction wells fargo had already communicated that she qualified and so it would be reasonable that if if wells fargo had already communicated that she qualified it then could not turn around and say she was an eligible for the modification right and that's different  happened and what happened is many of the lenders or many other departments just did not do what they were supposed to do under him they'd never countersigned p p p and they never provided notice that you didn't qualify again they try tempted to pocket and i even took a more harder look at why go again it seems to me that you have got to qualify there's nothing in this record to say that you ever qualified your client i think you would have under court fellow the failure to where in the record can we look to a document that tells us that your clients qualify for him my client's loan did not qualify for hamp it's so they send them the t p p and that and therefore because they should have sent them to the p p they are entitle to all the benefits of here's a here's how hamp was supposed to work first you determine threshold eligibility criteria then you get the borrowers income and then you spin from the income you figure out what an affordable payment would be then you take the income and the property value and you figure out whether they qualify for hamp based on  standardized net present value test and only if they qualify to use only if they qualified use argument in order to buy your argument we've got to say that sending it t because frankly there were not just hamp they were trying to qualify they were also trying to qualify for a supplemental modification under an internal program that they didn't know and i don't just a minute i'm saying to you is if i can't find anything in this record that says sending out a t p p says you qualify you lose they were called on the phone and you know they were told called on the phone and told they qualified for  even if even if individuals were not qualified for hamp whether they might have been qualified under certain internal modification programs of the bank and there was there was testimony in the record that the government even encouraged sending these things through people who were who were who were not eligible because they could then consider the information provided in response to determine whether or not they should be given the benefit of some internal modification program that might have been more favorable to them the way the t p was set up was based on the t p you sign it return it with your documents and it's their obligation internal procedures or both of my clients that don't have that level of sophistication i don't think anybody did at this point they were trying to get a loan modification they submitted their income documents and they were told they got a loan i thought at that point you're saying the t p p doesn't make any difference  wanted as loan modification and the minute somebody tells them they're going to get one should but because nobody ever told them their got one or that they would get one every time they were told they were being considered by them you lose the plain language of the t p as interpreted by court fellow and wife and i ask so that there's two condition precedent to the lenders obligation to modify the mortgage once you get the c p p and it's whether  that's what i that's why i'm having difficulty with your argument because it appears that the people who was thinking along those cases had been told that they were qualified what poor fellow said is you covello said no you can't do that you have to if you do not tell notify them in writing that didn't they do not qualify and the modification effective date comes you have an obligation to modify the loan and i'd like to explain what this qualification language means under just no basis for that what the preamble says you are one to five as if i have not already done so i'm providing documents to permit verification of all my income determine whether i qualify for the offer described in the plan and that's and so you're giving them your income documents to verify the stated income he supposedly gave them beforehand and that's what you're giving him the income documents for and the t v coverage cover letter says the same thing listen to the were over seven hundred twenty nine thousand dollars because the bank would use that information to evaluate whether or not the bar would qualify for a loan modification under their in house program where they would use the hamper applications at times and that's from does not have estimation this is a ham t p p that my clients received from the bank now there's evidence in the record that mr knox did not know what the have eligibility caps were he sent a letter saying i can't were at the time my clients applied first applied to an os it wasn't a hamp application they filled out they just filled out a standardized application they got back a hansie p p which promised them a permanent loan modification on the modification effective date under color fellow unless they received written notice that they did not qualify i just the qualification condition that we're talking about here what the t p p was about is that if you had an order to qualify you had to give your income but often it was taken over the phone and they were allowed the lender sent t p peace based on stated income given over the phone but then they had to terms yes right legal term i know i mean what he's saying is why god says it's absolutely the contrary and everything i mean i tried to lead him through it to say it didn't but now you better respond says that's what the documents say all the cases that plaintiffs have cited rely on like god that's where that's where all of this analysis from last and core value of all comes from why i got and why god is perfectly clear that the it was determined that they failed something called the net present value test basically they just didn't have enough income to continue paying the loan at even a reduced rate and so said he had to deny them under that program as well but again that's and i think that's a claim that pla have pushed in this case the reason i asked him about that it seems to me in the record on may twelfth the nineteenth that your client told the plaintiffs that they were reviewing their situation for another supplemental modification right now that's correct that's correct and then on may twenty second it was the loan was transferred out right and city had actually already communicated well in advance of that the plaintiff didn't qualify for the in house might have kept pushing an appealing it's a city kept saying well we'll take another walk we'll take another look but ultimately said he had told and you know in december of two thousand and nine again in january two thousand and ten that they didn't qualify and that's including into the city program but that's still a reason i ask about that is because it seemed to be there were two or two things going on at the same time i don't know that that takes away from the breach of contract or promissory estoppel but it does show that they were talking about two different things and that's why it seemed to me that the hamp t p p provisions as well as the t p p cover letter kind of destroy the argument yes no right and i think you know i was correct too i mean they are the planets elegies you should've told us at the outset that our principal balance was too high well of course we're also considering them for another program but besides that can't possibly support a contract basically well but that's what i were i was going to when we get to the misrepresentation claim however it does not suggest i mean there was an expert who said there's no treasury policy that says you shouldn't send out a t p p right and that's why i got into these alternative plans to have guidelines suggest you couldn't consider the t p for the alternative programs exactly yes and i so i think if the court agrees with me on the on a contract basis claims i think the misrepresentation claims also fall by the wayside because the whole point of the misrepresentation claims plaintiffs have asked for american pipe tolling based on class allegations in cities hamp and d l the problem with that is the complaint didn't assert fraud or negligent misrepresentation american pipe if there are some differences in the facts supporting the class claims and the later individual claims but california won't apply american pike if the claims themselves are different and there are good reasons for that assert claims that weren't in the class action is going to file their own separate lawsuits anyway so the rationale for american paper doesn't work here and second you know anyone any class member can look at a class action complaint  caption say what the claims that i want to assert that's easy whole lot tougher to figure out whether the legal or factual nexus is close enough to the claims i want to assert and what the statue imitation is we want predictability we want  case looked at whether the elements the legal elements of the claims in the class and in the later individual claims were the same or very similar well none of the claims asserted in the in the m t l have elements that are the seen or very similar to the misrepresentation claims you would have to create some sort of a frankenstein claim combining all the m p l claims to get there so i don't think that argument works at offering to claim any anything like ho if you're on a plane is final claim is under the rosenthal act judge fisher also found that this was barred by the statute of limitations that act as a one year period and this does require a little bit of math which intimidates me but plaintiff's claim accrued no later than january two thousand and ten that's when plaintiff's lawyers admit that city notified them that plaintiffs or ineligible for hamp then you've got about six months passing before passed before plaintiffs filed this lawsuit so you can buy the nine months with the six months between a cruel in the first rosenthal act class claim well past year supply us responses number one their claims actually proved later than january twenty and plus nobody cover a law had been made two thousand and ten when city transferred the loans to the other service or right that is correct your honor that's correct that doesn't have any significance in this analysis i don't think so not for american pie well the only reason why i bring it up is that may two thousand and ten is the first time when they had no idea that your company was not trying to do something cover them  they had been denied because the principle balance was too high no appeal was going to change that fact the principle balance limit was seven hundred something change in the principle balance is like one point three million and even if they want on that accrual date even if we want to make two thousand and ten they still need to relate back to this may two thousand and ten complaint to get a timely claim and i should say plas a that it doesn't matter if class members relied on  the class action in deciding not to sue it's true class members don't have to endure individually prove reliance on a class action but the california supreme court said in jolly that there has to be reason to think that generally class members would have relied on the the second complaints and this is back in the two thousand and ten two thousand and eleven time period the second complaint allege that city sent them a t p p and then wrongfully denied them the loan modification it asserted claims including fraud and promissory estoppel the state court granted cities demure with prejudice as to five of the six claims that plain of society dismissed the remaining fraud claim without prejudice gave nothing happened for two years exactly exactly and the only the only dispute between the parties on race judicata is whether that was a final judgment on the merits from our standpoint  cases like wong and good kin it is because you've got someone who's had five of their six claims dismissed with prejudice those claims have got to be out and then then they split their cause of action right because that's i think that's their position yes and they also do have this cat it's case it's an old california supreme court case that does have some good language for them that says that demure rulings don't have race judicata effect if the complaint in the second case cures the flaws with the complaint in the first case but ken it's a totally different factual situation none of the claims in that case have been dismissed with prejudice  right because because they you know it's actually i think about as more of a claims winning problem by it will claim splitting or not they would have been able to file this fraud claim again in the in the state court would they i agree but why not here well because i think that they then they're basically doing everything they claim splitting a race judicata is designed to prevent sort of forum shopping right because they should have filed that in the forum shopping but the problem that i have with it is that nobody ever said it was wrong nobody ever said no you don't have a fraud claim not with prejudice the court did dismiss i don't really miss what they said but if they can read a man and they've got the claim case to tell you that they couldn't either i think i'm using general claim splitting theory which is that you're supposed to assert all claims and one in one action not split them between two as they've done here but obviously race judicata as an argument that it's alternative for us there are a as i'd just like you to take another look at court below and in particular did this district court's interpretation of corel o e r seven on the motion to dismiss we pled that they did not qualify for hamp and we believe the district court got  first the first time in and ruling on a motion to dismiss and that's i d r seven i don't want to take too much time on that with respect to the race judicata there's a string of california supreme it that's why it's an alternative grounds here there's several several a series of california supreme court cases that all say the same thing on the rosenthal claim i believe  what's going on here is obviously the rose and all fall that claim is that they used deceptive means to collect this debt telling them they were in a loan modification process when they weren't under camera rover the continual californias continue violation doctrine as long as they continue to pay the debt and it was one continuous course of conduct their claim that their their claim starts at when they stop paying the debt which would have been made their last payment was in may two thousand and ten if they're lucky if the  claim accrues in may two thousand and ten they do not need the relation back doctrine to have a live rosenthal that claim it's only if it's april twenty that they need to relation back doctrine and there's also no reason not to apply the relation in california law california law holds that the relation back doctrine avoids the statue limitations where the it's the same transaction or occurrence and it's all based on notice the same the very same policy and principles that american pipe is based on the class action provide the defendant notice and so there's no reason to say that the relation back that somehow the american california version of the