the main issue on appeal in this case is whether the district court committed reversible error when it granted plaintiff's motion for partial summary judgment and deny defendants cross motion for summary judgment i argued today that such er limitations to take that one up that's just the federal side exactly and the district court decided that there were a couple of garnishments one was fully completed a man was attempted i think that both occurred within one year of filing so why was he wrong about that about that those two acts were discrete and independent acts and they were actually filed as independent violations of the f t c p a and the state law so this wasn't a continuing violation situation and the th circuit hasn't even decided whether continuing violation there even applies to up the c p a claims but even considering that it might apply to up the c p a claims this is not the type of case where would because obtaining a judgment and garnishing wages are discrete and independent a so i don't even consider those wage garnishment arguments as a separate violation to even be pending at that time before the district court or here on appeal i don't think it's proper to raise them here on appeal when they've already been abandoned wait a minute i'm sorry but i'm trying to follow you started by saying we're looking at the summary judgment ruling and it's summary judgment they sure have and that's what the judge judge relied upon yes and i believe that was an error because the plaintiff never raised the wage garnish on the misrepresentation and notice claims again he allege the garnishment a separate violations so i think the only way the district court could have found that they were within the statute of limitations is to find a continuing violation the before you get there the district court dismissed that claim because it wasn't waste because it wasn't included as an affirmative defense in your answer right that is true one of the basis that the district court denied the defense is because it wasn't discussion because it failed to consider the prejudiced element and the th circuit has been pretty lenient luckily for us with pleading the defense for the st time in a motion for judgment on the pleadings and a motion for summary judgment those cases are where the district courts have allowed the case the defense to go forward in this situation are just a court judge here was just an forcing the rule the judge was but i think the th circuit has been pretty clear that absent prejudice to the plaintiff the defense should be allowed to be raised and the district court and even never even address the prejudice argument and i think that's the problem and where the failure to adequately exercise discretion was shown ok i think that's your best shot there so let's talk about cot bars the claims for it for for that reason bot i don't think you've got any authority that i found persuasive if i can just focus you on that for circumstances where a default has been obtained without the the  knowing that the state court action is occurring and then having raised it a caught up are the federal claims and it's a little it's a little interesting because it's downright cheeky i mean it really does seem to be standing the doctrine on its head there's some cases that you cite for sure i think in maryland right but but in those cases it seems to be that the defense debtor was served and was involved in the state court case and then dropped out and default judgment was entered that's really different than a circumstance where the debtor doesn't know that the state court action is pending and i just want to give you every fair chance to respond because i was not convinced i appreciate that i believe at least one of the cases we cited was a failure to give notice of the default judgment so it would have been exactly similar to the situation an earlier maryland case but i know which one you mean ok the ability to raise the notice issue and the misrepresentation existed at the time the judgment was entered because it's simultaneous when they filed the motion for a default judgment they had the lack of notice and they had the misrepresentation so prior to the judgment being enter any argument that they failed to follow procedure or made misrepresentations existed before the judgment was entered now i understand that judgment about which they didn't know the judgment was about which they didn't know about which they didn't know and that's why i was a little trouble getting my head around this so you know they also had a one million other claims they could have brought up they didn't know about it so how how do you get over just the pure logic and fairness problems i understand and i was going to dress that point i think the proper procedure would have been to a motion to vacate under the rules there were two avenues going to that's that if they want to reopen the state court judgment to bring that defense is there yes that's what they would have had to do they would have had to get could have been litigated over their right that's that's the theory you rely upon they could have been litigated and are now i think all three of us have raised how could they have litigated them if they didn't know the state court proceeding was pending could you answer that please and am fortunately we just disagree on the answer there because my answer is that i think they need to raise it as part of a motion to vacate and i understand ok so is and i'm i'm interrupting you but i get that part to forgive me for interrupting but do  i don't know the answer to this do you have authority for that where a state court is required the sixty i'm sorry where a federal court is required to sixty not in washington i don't have a specific case all right leave it for something that for i guess the similar circumstances here in washington ok your attention to the state claim please address the state claim i wonder if i could shift your attention to the you make a separate argument that they didn't show actual damages or that the court ruling there on actual damages for purposes that the state claim was in error could you address that yes so one of the issues i guess is that no more than what was legally owed w garnished and that's the damages that the court awarded and i say that because again i believe and if you disagree with me it's not going to be very perlite haven't been shy but absent bake hating the judgment the judgment w lawful so when they moved on to the garnishment which again i see believe as an independent discreet act they weren't requesting or even obtaining more than they were lawfully able to do ok so my happy fedak was going to be default that default judgment wasn't lawful that's a it's a hypothetical ok but i am trying to figure out on the state actual damages provision whether there's an error there because i'm it's a little hard for me to figure out the  the measure of damages that the district court used as plain he thought that the st garnishments one thousand four hundred and sixty eight dollars and some odd sense he measured that as the actual damages right yes ok and then he traveled it before get the troubling for a minute i'm just trying to get to the actual damages is is it your position your priest talk past each other when you say that no more than was owed was ever garnished opposing counsel takes a different view right yes well then i guess if i were to assume fact that the that the plaintiff acknowledged and admitted that this debt was owed and was even willing to enter into a stipulated paid part of it which is one of the problems they've got that they say hey you got a default judgment and didn't give him credit for the payments he made but it seems to me that he does also admit that with the time his credit card was expired he still owed about a one thousand dollars that's not the right number but about a one thousand dollars a one thousand so if that wasn't fully paid yes so i think even if you are you did that yes this was an unlawful so the fruit of the poisonous tree which is what the district court in opposing counsel has mentioned because he acknowledged knowing about a one thousand dollars left regardless of whether there was a judgment if you just you know remove the attorney's fees the cost and the interest he admitted to owing a one thousand dollars so i don't think it was proper to include as part of the damages most might have been four hundred dollars let's estimate well it's kind of tough to estimate though and we don't estimate that's what i'm trying to figure out where does the where does the obligation to pay interests come from to the district court decide that there was a binding oral agreement or what happened there i believe it was statutory and by law so twelve hours that's once you get that that's not enough that's different that's when you once you get to the debt th to the default judgment yes there was no prejudgment interest that the court didn't find any but up what i'm trying to get at is i'm going back one step earlier forgive me you to talk past each other about how much was o right and so you got a default judgment for the amount of the full amount and you can see to get that was an error yes the full amount without giving him credit for payments right yes and he still ok then there was a garnishment for its one thousand four hundred and sixty eight something and your view is that at least a one thousand of that was owed still owed us part of the principle amount so not an actual damage so i don't believe it's actually i'm trying to figure out what your view is of what actual damage should have been awarded and then troubled what's the most the judge could have entered i argue sierra because i believe that you lost that part of my hypothetical so i believe they could be no more than was owed on the principle so if it started out at three thousand four hundred  made a one thousand in payments this is off then then the real facts there is two thousand four hundred dollars more on the principle than he would say oh and that should have been the actual damages so whatever was still owed on the principal amount that was  at most that's as much that could be entered as i do you calculate it but that by any chance the exact number i'm i could probably do it during my rebuttal time if you if you would like but thank you for your patience with my question aware of the supreme court's decision today in residency if that's how it's pronounced and i believe after having read it in the on the way here that the discovery was a short opinion my understanding is that mandarin did not ever challenge the validity of the discovery rule that wasn't really an issue in this case or on appeal i think that as i understood the argument f mandrake is that this is not a continuing violation which is a different question from the discovery rule and that these were independent garnishments and therefore you can't sweep everything so what is your view on that i'm not sure if it's possible to take the view that both of them are true at the same time but i also i mean part of the problem with the what happened here to my client is he made this agreement way back in time to pay what he did and there never should have been a judgment at the bare minimum you should have had notice so but violation separately because they misrepresented the amount due they didn't give your client credit for the payments that he made i believe the garnishments themselves gave credit for  didn't give you all the judgement or not well ok well i mean just trying to give credit to manage were were do i think the garnishments themselves had a line item that credited amounts previously paid but the wrongful act was representing that my client owed more than the three thousand and twenty dollars that's my i have a difficult time separating those two things i'm sorry i may have a hard time understanding the nuance of the question or it's ok it's ok i don't think i asked it very well when i go right ahead ok let me did you take any action to i mean i guess i'm trying to out is is the judgment do you accept the judgment is valid because it was never a challenge are you claiming that they had a right to garnish i suppose that's a if they had a judgment that hadn't been voided so i don't so i guess i'm trying to get to where your damage where she actual damages ok i understand the court's question i suppose it seems in some ways like splitting hairs that it was not contrary to any court rule to issue a wage garnishment at that moment in time because a judgment existed i totally understand and accept that what's false and misleading about that is that my client had an agreement with me and rich to pay three thousand dollars not three thousand four hundred  that amount so the damages the amount that was garnished above what that's one argument your honor i would say it's all of it because if there's an agreement that he would pay the amount owed the agreement did not include a covert judgment getting obtain behind his back when he was sued  my client was sued the case was not filed which is permitted in washington of course so he couldn't have even filed an answer if he wanted to so he said was that your client was going to continue to make the monthly payment that was your and at some point he stopped making the monthly payments  didn't they sue him perceive the default judgment before he had stopped that's correct or so before he was still in compliance and they went forward and sued yes correct your honor and even if my client had fallen out of compliance at some point before contract but there's no universe where the bandits would be allowed to then covertly without telling my client file the case and get a default judgment and then just start garnishing i think that's right but i'm trying to figure out the universe in which the amount your client still owed becomes an actual damage the one thousand one hundred dollars or whatever it is it's a little over a one thousand dollars that he hadn't paid yet well i suppose i would characterize it in the manner in which it was taken so maybe is a different example your honor if if we assume that there was no judgment at all if i owe a one thousand dollars to somebody and there's no judgment and someone garnishes my bank account i still owe the money that's true but the manner in which it happened was totally contrary to law that's a problem well so let's what's the solution man it gets to get to the one issue that bothers me is that the damages awarded were  entire amount garnished but we do know he still had money owing correct for it so why wouldn't you recalculate that to figure out a reduction in those your client with respect to the filing a lawsuit but now we get to the end of the story and the question is who owes whom what so why the district court so when you get the whole amount of the garnishment as your damages but he still has his debt out there so why wouldn't that be offset against the garnishment amount perhaps it would your honor i would still say that it's well to the interim when you say it would should we send it back to the yes we still have this amount he owes nobody disputes i don't know what may dispute the specific amount given the timing that there's the amount he owes why shouldn't we let the district court re c figure its damages calculation given the debt that's out there because he never should have been garnished that was not the agreement so it's not a matter of whether the judgment was the council right the under the federal statute there's a one thousand dollars penalty under the federal statute there's an availability of the emotional distress damages under the state statutes a different deal and that's the question we're really aiming at all under the consumer protection act there has to be actual damages oh ok i'm right or injury i believe is the term and so what if you got ok so a there is the amount regardless of whether the garzon was proper or improper my client had an agreement to pay three thousand and twenty dollars i believe it was so not thirty four one hundred dollars not three thousand three hundred dollars but three thousand dollars but working here i think it's three thousand and twenty dollars so that was the agreement that's what he owed and more than that means more than was allowed period that's it so no amount of covert judgments old mean that it transmogrified into some other debt that it was that he didn't know about that's not how that works i think in addition for state law purposes so what constitutes  injury which again can be confusing or are because it is distinct from damages i think washington case law which is that i think tips says that is distinct from what would be coverable damages no sara lee but as i think i said in my brief washington state statute business or property correct nd would be the loss of use of his funds during the nd garnishment which again no matter how transitory the injury or fleeting any economic injury at then return that is absolutely a compensable injury under washington law and the last thing is that numerous occasions my client testified that he incurred expenses in meeting with legal was correct because the manner in which it was taken was contrary to the agreement even if it wasn't the amount beyond which he owed was still an injury to business or property and i think the district court surmised that that was sufficient but as this court can also affirm on any basis in the record the record is replete with examples of the nd wage garnishment happening and it's just simply a matter of fact that when someone doesn't have money that's an injury to a business or property in washington and my client testified numerous occasions that he did incur expenses meeting with counsel when i realized that these all seem like small pittance technicalities you know five dollars case arguably that means it's not before this court either i realize there are ways that that could probably be altered but at present no that is an issue before this court so yes state law and federal law both the shifting statutes that are arguments the race to cut issue i would want to bring to the court's attention something that i found yesterday in my last minute research i guess just to less than two weeks ago in angling versus merchants credit there was an unpublished decision of this court which just simply reaffirms the same arguments that i've been making in the briefs which is that just for future reference when you everyone does of course prepare at the last minute of just before argument if you find something the appropriate form is to submit twenty j letter so both the court and the council know what's at issue i was wary of the propriety of doing so for unpublished case your honor i understand that i am on how much cases can be cited for persuasive value but if you are worried about twenty eight jail letter it doesn't seem to be bothering you that you're telling us about it here well my understand again maybe is perhaps too nuanced iran even given you some suggestion for i appreciate the e nt total three million three hundred and one thousand dollars sixty nine cents leaving a difference of two hundred and ninety one dollars sixty four cents science which again i argued that there was no actual damages there was no injury to business or property at all but to the extent this court were to disagree with that argument i believe the most that could have been awarded was two hundred and ninety one dollars and sixty four dollars signed so that's the difference between opposing counsel i guess his his position is that he was his client was obligated to pay the amount and what was paid to him and what was paid and garnished at it so your view i think is that that's the most that could have been troubled the most yes if more was garnished than what he owed how could that not be an injury to because i get i think it goes back to whether or not the judgment was void i argue that it wasn't void because the district or sorry the state court had jurisdiction both subject matter and personal jurisdiction so if the judgment was not void it was there for and that's where i think razor to cut it comes into play because i think the biggest issue here is that by finding that the creditor was entitled to the amount claimed the district court necessarily determined that the representations of the motion  and the requisite noticing i mean the representation that that was made to the court about that he had not appeared at the representation that's a little bit different that he did not appear would depend on whether or not he did in fact appear which there is a disagreement between the parties as to that i think the message misrepresentation i'm referring to is the balance that i see so the court necessarily made a determination on that issue as well as notice because the court by rule was not allowed to enter a default judgment if more than a year had passed and adequate notice had not been client didn't give proper notice is ok now i am not blaming the district court i'm just saying that's how sometimes these things can get messed and i think that goes to the bonafide air defense that you know sometimes it's reasonable to miss something like thank you thank you