case and i have to say they've given me a lot of help since i got involved as well and this is a case arising out of the truth and lending act rescission case and of course the rescission cases have gotten a lot circuit courts and they adopted them enough minority view and that was that a borrower can rescind mortgage not by starting a lawsuit which was the mortgage already view prior base mars to declare that their notice of rescission sent in february of two thousand and eleven was effective and the district court applied the one year statute of limitations set forth in the truth in lending act for damages it is in a section that's codified at fifteen us c sixteen forty seven paragraph eat and that section clearly states that it's a just said you don't have to bring the lawsuit i think you try aren't you running afoul of the concurrent remedy doctrine in that you're trying to bootstrap your deck action onto a time bar damages and i don't think that what the requires the lender to respond in twenty days now in this case they didn't respond in twenty days but once it's effective why would any statute of limitations apply to require the lender to go and get a declarative declaratory judgment action that the rescission was effective to could be twenty years well that's what we say and our brief because as you know judge totenberg in denying our motion for reconsideration found fault  with our our reasoning but by saying well we didn't propose an alternative statute of limitations we say in the first case well the statue of limitations really is an obligation that the bank has but the most analogous statute of limitation would be georgia's twenty year statute of limitations to enforce a statutory right and in this case the right arises out of the borrowers right to receive and under section six hundred thirty five of title fifteen which is a separate section of keela and so not counsel but let's let's assume that just for the sake of this question that the district board on the statute of limitations issued couldn't the district court still be affirmed is that complaint didn't adequately allege that the bank failed to make the mandatory disclosure sirena clear could your honor but the problem with that argument and that the thrust of the bank's brief of course they don't really i don't think they even tempted defend the statue of limitations reasoning above just answer but yes he answered yes and so tell me where in the short specifically us being us today has not complied in any manner with the requirements of fifteen u s c section sixteen thirty five well you turn to section sixteen thirty five and that's where  and so assuming it's the same so it you're talking about that one sentence and so it's your position that you don't have to state in the complaint the manner in out of the general rules of plating an allegation that they failed to make the proper disclosures to disclosures that were required by a specific statute that set forth i don't think there's much ambiguity there and indeed so you don't have to how hard is it if they not tell you the interest right why or why is that not a doable well it may or may not be a doable thing but the issue before you your honor is whether or not it's a requirement under the pleading rules for that that you cannot just make unsupported legal statements and that the bank failed to disclose material facts would be a legal statement and that you have to to allege facts that would support that so so help me in this statement it's not all of that general it says it failed to comply in any manner with the requirements of sixteen thirty five and if you go to the requirements of sixteen thirty five there they are in black and white with respect to the disclosures they refer to other sections but i think that it when the defendants called upon the answer he has no clue which of that list of things so i'm not so sure about that your honor this this was years ago they were representing themselves and if they're calling for sedition of a four hundred thousand dollars loan out and they're still in the house and i want to keep the house not by the money but based on the fact some terms are not disclosed but they don't even know that's the case because they don't even have the disclosures well your honor if you if you assume that the bank did not make those disclosures they wouldn't have the piece of paper again i'm here to say or to testify what the facts are because frankly i don't know but all i know is that the legal issue before you is whether the pleading requirement was sufficient and i'll have to say that the district  by implication have supported that they were not provided with notice of their rights that would require rescission within three days you said something earlier you said two thousand and eleven which was the letter that's right is when we start the clock but your clients paid the mortgage for another year and and it wasn't until two thousand and twelve that an actual complaint was filed with the federal agency back to you live so are we starting our clock from two thousand and twelve or or did the magistrate not was that not addressed i'm not sure if it was addressed i think that there was some confusion over the date of the rescission notice i think the base morris before i got involved took the position that they gave several notices of rescission the first one that i found was and i think the clearest is the february eleventh two thousand and eleven letter there's a letter and i think it's february also two thousand and twel it was sent to a consumer protection agency a copy of which was sent to the bank in the basement to take the position that to put the the bank on notice that they rescinded their their loan pursu t to section thirteen sixteen thirty five but i want to go back in just in terms of the pleading requirement i think also that had the district court this is certainly an argument that  bank made before the district court and the district court rejected it and the language that i just read to you judge totenberg in adopting the magistrate's recommendation didn't deal with that but she adopted the  recommendation generally in all the respects that she did not specifically discussed and so it's part of her order as well and i think that had the district court not erred  in plying the one year statute of limitations and they looked at us to an issue like this and maybe they would have agreed with you cards that just out of fairness to the bank maybe we need a little bit more elaboration what would a district court judge to i think that they would have to dismiss the complaint and give the base morse the opportunity to correct that error they never had that opportunity to do that and now remember i know that you're probably worked from earlier with the language motion was denied right by the the district court i believe based on futility because the the the proposed complaint was going to elaborate on the declaratory judgment honors i do want to clear up one issue that i do think is important and that is i think mr griffith was just misspoke when he said that they were on represented in fact if you look at the end of the second the amended complaint it's filed by an attorney all the responses in pleadings are filed by an attorney up until the point that the judge rules against them and then they start filing motions to fifty nine to nine motion sixty motions so they were represented when all of these complaints were done so it is not a less stringent pleading standard now as to judge williams as to your question the bank would agree with you that you are correct that the concurrent equitable remedy is generally barred and that's because in this particular case the declared for a judgment is not its own cause of action it's a cause of action the rimini is a declaratory judgment and since the briefing has been filed there is a case put versus american home mortgage co two thousand and seventeen u s district lexis five eight to zero nine and that's from the southern district of florida good to middlebrooks yes yes judge and it's april seventeenth and so in that case it basically laid it out it eleventh circuit law national parks and conservation association versus tennessee valley authority and in that it laid out that because you have to look at the underlying remedy you look at the one year statute of limitations from  district court ruling was incorrect on the statute of limitations sometimes just understand what you just said are you now switching gears a little you know what is your position short our position is your honor that the one you're such a limitation to doesn't bartok we are get it below standard all that what i am or stand is your bank it seems at some point everybody involved is playing a game of chicken hoping the players are hoping you won't come find them in their home and  you don't respond to them at all until two thousand and fourteen when you initiate the non judicial foreclosure so at that point why isn't it appropriate for them to bring as an affirmative defense to your well your honor with respect to the letter itself from two thousand up knowledge us that first because it's a multi part question now if you look at that letter and we note in our brief they've abandoned the uploads to the c a p b clearly doesn't meet the requirement that you have to mail something to the bank in order to service proper reception notice so you take a look at the letter and that's a one thirty five to a one thirty seven and in the letter itself if you actually read it it says we're talking about a december two thousand and three law that's not at issue in this case this is a two thousand nine hundred finance that was the original loan so they sent that that u s bank didn't even originate wells fargo originated and that's that's in the record it says that multiple times is about a different month so u s bank does not have any duty to offer to a request for information about a loan it never originated and that it never never dealt with it was a sting wish with the refinance so the if you want to as you say if you would like to say our interest rate is wrong or we were never provided the disclosure forms to begin with you actually has certain material disclosure requirements in the court discuss those in the way in case  foreclosure why is that not a precipitating event for the base morse to come forward and say even if you don't agree with us in our timeline we we think you didn't tell us what we need know we tried to tell you were sent in so that's part of this so your are with respect to the right to rescind the beach supreme court case dealt specifically with that beach versus when and in that case it was directly to issue of can we enforce the right to rescind more than three years after the loan closed and the supreme court said no and in that particular case it was the supreme court stated quote the preache you have a confirmation sale to collect the debt right but doesn't it doesn't it say in sixteen i want to get my numbers right sixteen forty that this subsection does not bar a person from asserting a violation in an action to collect the debt foreclosure which was brought more than a year from the date of the occurrence as a matter of defense by recoupment or set off in such action it does say that your i respectfully it is not an is not an action to collect the debt it's only to enforce the security interest so your sign the foreclosures and i'll help them if you go back and try to sue them to collect the money but it may be a help to them that is correct you are in a confirmation proceeding and in georgia as i said the case it's a set off so it makes perfect sense to apply in as a set off in a confirmation case where if it gets knocked down for one hundred twenty thousand alone was for two hundred forty and someone has money they can go to court and try to seek the deficiency judgment so there they say we need the excess money and the barak and say no there were violations we need a set off from that because the defense so and but in this particular case your honour's they didn't do that they fall a separate  and if you look at their original complaint in the original complaint it was failing to get notice about the default acceleration and then they didn't know about the assignment of from earth to us bank and none of that has to do with anything  in the second man to complete the one they were actually here about it has nothing to do with the foreclosure it simply talks about a violation of trying to get affirmative damages it is not in any way shape or form trying to be used as a defense it's being used as a sword instead of a shield now the non judicial foreclosure it was halted after they filed suit but if they wanted to to to try stuff that they could have and maybe they could have found something halted the foreclosure yes or voluntarily halt and so they have been in the house now for several years and i can payments know they are not making payments on many years since all this started they've been there without and i believe that since two thousand and twelve thirteen you're on a two thousand and three years yes you're right it's been it's been quite a while and that's because the plaintiffs if you look at their briefing they say the house is theirs they owe money and that's another reason why it cannot be used as a defen because they say when we sent you this two thousand and eleven notice it talks about a two thousand and three loan the property you didn't respond in twenty days the property is ours and you are what's damages so it's not being used in the complaint as a defense to anything it is saying we own the property free and clear and you always money that is clearly not what it's intended by sixteen forty eight now the judge in ascii case does not require otherwise going back for a moment on the statue imitation because if you look at the timing of the just  about the right to rescind not how you were sent but on the timing of that case that suit is filed within the one year statute of limitations for damages and so if you are going to piggyback off of the statute  exactly what i thought happened yes your honor and that's their complaint that posing counsel's talking about is not the record you don't know what that is that summer that they were thinking i'm falling a third and then a couple i believe it is in the record i think god judge black was reading from it earlier i   under you know even if you just looked at a red ball that's clearly not sufficient but you don't have to because the eleventh circuit has gone further and actually analyzed what is required in order to plead it now in the wayne versus allegations that would provide a right to rescind the mortgage and in the way in case they had claims about not providing identity the lender interest rate problems yield spread premiums being wrong processing it administrative fees  and the court said no those are not material so they do not give you a claim and in this particular case if those specific allegations are not enough to get you past pleading states and certainly saying you violated an entire statute and i can tell you what is not because all that does is violates the equal standard which is you cannot fully consistent with liability you actually have to have factual enhanced ments in order to get there and the court actually went forward and had a second decision brooks versus american home key which is since we filed our brief which held dismissed because it noted that there was no factual and hance meant because all they said was they didn't even allege they failed to provide the required disclosure so from us banks position we have do we have any facts showing they have the right to resend and the answer to that is no no one second is if there are facts can i show that properly resent now we say your honor that looking at the february eleventh two thousand and eleven letter which is the only one i guess you are looking at that you can say as a matter of law did not properly were sent proper rescission is a drastic remedy it requires a bank to do something within twenty days you know return the principal party start engaging in how to get back to normal well if you get a letter talking about a loan that you never had anything to deal with and that just uses the word rescission it then you have to go to a court and file a lawsuit in order to stop you from losing property banks are going to be forced to file lawsuits for any letter they receive even if it's about a different loan thank your honor i wanted to address a couple points first as the terms of the pleading requirements again i think that the bank is really overstating the case here because the pleading requirement that's required is merely to assert that the banks disclosures that would be that were required to sixteen thirty five were not made and those disclosures of course were a clear statement that the borrower had the right to  information with respect to the interest rate total number of payments the mound of financing charges and how much total interest is going to be paid over the course of the loan and so that's not really a lot of very complicated facts those were either  served or are not and i get that the banks contention though that we're talking about a different teaching altogether it's a different transaction i mean if the if the complaint had been more particular would we not have that was that were the adequacy of this rescission notice dated february eleventh two thousand and eleven it appears on the record between pages one thirty five and one thirty seven and it's addressed to us bank it states specifically it's most unfortunate this is the second paragraph that after multiple attempts u s bank continues to deny us the borrowers information and it goes on to talk about that and then in in the in the body of the letter in the second page that appears on page one thirty six it fairly clearly says u s banks continued failure to prove use all the information we are not entitled to under teela and then goes on to face other consumer protection laws as well has to be no longer than one or two sentences long nothing and teela says you have to say why you are sending you either have the right to resend or you don't and nothing until it says that you have to explain that to the bank and just go at justin ask it doesn't say you have to say that now it is true that of course the base morse would have to have the right to send that in order to exercise that right and we're not saying that that's not an issue that would be ripe for discussion and controversy perhaps i don't know if it will be because no one in this case has actually seen what disclosures if any u s bank has made an interesting side point is that in the we don't even know from your disclosures i think so i think and again i know that we've we may not see eye to eye on the effect of paragraph twenty four but if the bank did not comply with the requirements of section sixteen thirty five and sixteen thirty five a says you've got to important remember this is under the if and this is true i mean i don't know if there's any pleading requirement saying that you can't put a new fact in the section of the complaint that's titled count one declaratory judgment and so they say in the declaratory judgment can and which we all know you have to allege that the disclosures weren't made they say the bank did not comply with the requirements of sixteen thirty five which in the context of th clear terry judgment for recision really doesn't take much to put two and two together they're saying they didn't get an explosion and again i think that for the purposes of the peel i don't see how that that could be the basis of a dismissal with prejudice of their claim because in the district court judge totenberg not made the error with respect to the statute of limitations she certainly would have given the base morse the opportunity to to replay that i think in any  case what was the bank supposed to do if they had any questions about that they could have asked for a bill of particulars they could have asked for discovery on that and and now the point i was going to make is that i think the bank misspoke in its brief well thank you and so i think i think basically our argument is set forth well in the brief and the briefs and i think that one last point i'd like to make with respect to the adequacy of the the letter of the notice