you for that opportunity for oral argument we are here and they enough because and issue that was aptly stated by your opponents freddie mac the very first sentence of their statement of facts said this quote plaintiffs repeatedly in unfairly criticized the district court for accepting freddie mac's version of the facts and that in fact is the issue here that the district court did not accept the easiest issue and that is the one contested element count one into whether there was mail list sufficiently alleged there's actually six different independent basis is where reasonable  real estate brokers to quote susan and that they're bound quote to make the best bargain he can for the principle and that is a part of the restatement an agency as well and now codified in michigan law there listing of mr obviously we have the physical fact of the threat to put him on the list usually you would say well the per se wrongful act is murder defamation and slander so  what is the per se wrongful act in that that they seek to impair the ability of mr elias and the other plaintiffs to carry out their duties under michigan last specifically compiled log three thirty nine point two five zero one one two five twelve well but i mean in any kind of competitive operation you might say you're trying to make the other guy not do his duty in the best way possible that's so that simply simply saying you're doing x that is competitive or antagonistic is a per se or wrongful act it is not except when you attempt to cower the plaintiffs from performing a statutory duty but if i could judge let me put it now to the other five instances which do address the competitive situation you just mentioned we have ex nov twenty eight complaint to the michigan department of licensing and regulatory affairs in there what does he say he says quote freddie mac believes these companies and individuals should no longer be able to operate businesses in the state of michigan going back to judge bob's point that is not a statement of mere refusal to deal with the plainest that in fact is we want to knock you out of being able to do any business whether it's run a hot dog stand or provide short sale services furthermore when they made this complaint it was clearly baseless because the michigan state entity made a finding quote it was unable to didn't explain they did not explain what in the rules require them to get further explanation judge there is nothing in the rules except this as we pointed out in the case involving boyd vs nationwide position that where they did not respond or read and then follow through on the subsequent november complaint with the state of michigan that a traitor could mean not always but certainly was a reasonable trier of fact could find that that was the instance thinking about putting them on the exclusionary list which is basically telling them that he's a fraud he hasn't even got twenty percent into the response time and they're out talking to others about it and thinking about it really is true isn't it obviously when they say we're you know you have ten days to respond they they've sent him an indication that they're thinking about taking action against him but the judge clearly and we'll get to it later and what it doesn't there's not a rule of confidentiality that stated in any of this is there not that they put in there but clearly they are already stating that in especially when you consider what their exclusionary listing it entails there i considering they are calling him a interest you know that here somebody is going down the list and they say you know what i'm not going to continue to deal with you you need to know this because i'm not going to mean the requited he is the issue throughout this entire thing and so what they're six one is the disparate treatment if you look at exhibit number d day part of their presumption reason put him an exclusionary list of these entities is that he pushes the borrowers to say they're unable to pay where we see that their own partners nation star in india may do the same thing but they're not put in the exclusionary list that reason will try if they can say the disparate treatment is in fact evidence of improper motive or purpose you have to  do you have any case support for that in the sense that if you have a legitimate purpose or taking some action against this hardware store and you don't do the same thing for that hardware store because it's owned by your son in law or your college buddy does that does that count as malice you have a case that would say that disparate treatment comes in discrimination law you know if it were sex or race or something that you have but certainly a reason to try her could well but that's that's that's the question i ask you i understand your theory but my first reaction would be is there any support for it because normally if a certain act is not malicious the fact that you don't do it universally doesn't make it into malice so i mean i understand your theory you're saying you don't have a case that would that would directly support complaint that's what we're up on then that's correct however they're reviewing judge air supply use their common experience in judicial expertise here eight zero one tells us that a co property taxes is one of the legitimate bases for being placed on the west and your client list to collecting these taxes i understand what we judge here he admits they have a contractual relationship with his client that they have that if certain fees are disallowed that other property of their client will be used to pay his fees but that really goes beyond the twelve b six into factual determination it doesn't when when when you at mit in the documents attach to the complaint as i understand it that you have engaged in that sort of activity and mission of collecting these fees that are in conflict with freddie mac but the judge policies that judge turning on the defamation that does not say that freddie macin defame you by calling you a frog croak or cheat which is what the exclusionary list does do with that amount of time in the other and the other questions ok thank you counsel thank you  you and just to respond to the you know five or six points that my adversary made first on this the fact that the plaintiff has a fiduciary duty to his clients that ignores the fact that a duty to protect the integrity of the process and freddie mac has the right to say you know what this guy just seems a little too clever a little too aggressive force there is no duty to deal we cited a case authority for that in our brief and i'd also like to point out that the judge barnes wrote a decision on that in the haven't sure versus prevention case where road which is five ninety five hundred thirty three  twelve where the court said generally speaking absent the antitrust violation there is no duty to deal with another company and then i think is the answer to the first point raised for me or the series in terms of i'm struggling with  with the reality here the reality is you're the girl in the room i mean you have when you say here's what it's going to be somebody on an exclusionary  it would have a tendency to have a pretty long legs it would it really does impact the industry so to speak when somebody is placed on this list i mean he went out of business and so i'm struggling with the extent of your ability to impact businesses by placing somebody on the exclusionary list and i think the thing that concerns me the most is the third component of what being on the list entails is that you want to do business with someone who has a why yes or no excluded person in the chuang help me understand what it is a bad having  really millions of loans that it warrants are requiring it relies exclusively on these services to collect the funds to manage the loans in order to protect the integrity of those mortgages america resells them on the market to investors there has to be comfort assurance that this is a legitimate mortgage that it's properly being here and there all more medication efforts or short sales are being properly pursued if someone in that process is not following the rules or is making misrepresentations that infects and affects the integrity of the mortgage infects the integrity of the entire process so i think the work day and i understand it in the it affects the integrity no question you've got somebody and your will says you don't get to charge a fee and they're charging a fee so that would mean that you would say to that entity i'm not going do business with you anymore period but but and that makes it because it's risky to use in a lot of money that's a failure based on what you tell me a fair analysis but let's say you're of the firm on earth purchaser of a mortgage and the first guy in the chain dealt with elias and it's clear to somebody else what it is that what gives you that legitimate business reason to say i'm not even buying one where you're in the chain of time how is that risky to the public or to you because you're getting your deal at that at the end the question is what happened early on well if if if freddie mac is participating in a short sale but the plaintiffs client produce placing on the exclusionary list i'm not going to buy a product in which you have been involved in the chain of title in any way or and so i'm trying to understand what legitimate business reason you have to take that additional step your honor i think if if if we think we're getting burned by the plaintiffs operations i don't think we have to deal with them anymore if you're asking me what is the specific harm to the market for that i will i will admit that the brunt of the loss falls on freddie mac but i submit that is sufficient for freddie mac to take action and sit back and say they don't have to sit back and say i don't want to deal with this part of the question she seems to be raising and i'm not sure there's a meeting of the minds on the question is the question is is freddie mac saying we not only won't deal with you we won't deal with anybody who dealt with anybody who dealt with anybody who dealt with you and number one is that in fact what you're saying and number two then is there a reason for it that the exclusionary list does say that if  someone's on the list and they participated in the mortgage free market they purchased a lot if they participated in the mortgage process of them or yourself freddie mac's will not do business with with those people even up the chain and other words the question is so is so here's his client or he operates with a particular property that property as frequently happens you know get sold to wells fargo and adults hard to sell to somebody else and then they come to freddie mac do you in fact say no we won't do this because he was somewhere up the line well it does it makes the property riskier because or something but we seem to be having a question  about whether the facts here will begun fact not do business with the third guy up the chain if mr elias and his company were involved in the chain further back i believe the answer that your honor is correct yes they  not deal with is the fear what is the theory for that is that that you know once a property of once a product is risky that risk simply rolls forward to whoever ends up with and i think it's as simple as that is it that the process once the the mortgage loan is infected with this is what we think was improper conduct that carries forward and that if you that's about the let me ask you this then about understand that there are now about the quote improper conduct why does fannie freddie mac have this rule is that that the broker is taking advantage of the seller or of the buyer that is that he is getting funds that should accrue to some individual or that he's getting funds that should accrue to freddie mac well specifically with the prorated tax it is funds that belong t definition in a short sale or the mac is taking a loss right there trying to reduce their losses so they say whatever money comes out of that sale comes to us that would mean in you know the conventional home sale when you go through the  or whatever you do have rated taxes and if you have already paid them then you get them back or you get your pro grade share or insurance same thing right same thing ok but this you know this complaint was dismissed pursuant to r make more sense that this is the sort of matter that should be decided after a fuller development of the record so that it would maybe be decided on a motion for summary judgment no your honor i don't think that's the situation here in terms of the facts in terms of what the exclusionary policy is that that is a document that was attached to the complaint it's exhibits of the complaint it is fairly rancid are on a twelve six motion under trolley and it ball these allegations of  have to be plausible and we we don't have to accept as true his allegations if they are contradicted by public filings where you are if i could just s you're you referring your bridge brief to the cellar service guy regarding whether a service or a real estate agent can collect fees on a short sale but that's really not part of the complaint it would seem that we would need further development of the record to determine how such fees could be what would be proper in terms of collecting the fees you are i would respectfully disagree i think that the the law says the documents that are referred to in the complain are central to the complaint can be considered on its will be six motion the plaintiff or first of the guide several times in his complaint would be actually attaches a section of it as exhibits of a complaint if the guy does are publicly available document online and we think it's fair under this court's case law to consider things like the guard and things like public records that show that what  was not accurate including this whole business with mr glassman where he says he i never used them as an alias and public record show that mr glassman address is the same as mr elias is residence i don't  you the court its hands are tied by that situation when the plaintiffs is all i allege that you have to accept it is true and the case law allows the court flexibility to consider public records things like that but am i right that that that argument is in effect all exhilarating to your main argument which i take it if puts the simply is that he says he was keeping these fees so it's not a question of whether he did it and here's the guide that shows that that's the reason that we didn't want to do business business with him and that's a legitimate business reason you don't have to charge him with this additional stuff for you to taxes so what he came up with again this is from his own papers is a system where the seller he has the seller and the buyer enter in agreement that says the seller waves his right to program taxes but mr  you have to pay my company moody keegan this twenty five hundred dollar feet instead of that well that's that's a pretty classic circumvention of the rule and it finally freddie mac rule  all proceeds are supposed are supposed to get into that's what they're saying your argument is that is that there's no factual development beyond that to take the other side of it if if your rules say you have to have a ten thousand dollar bank account at all times and you say we're excluding you because you don't and he says yes i do here's my bank statement then you would have a factual issue would you kno yes i just want to just briefly address a couple arguments in the reply brief that the plaintiffs submitted in with respect to the f b i affidavit and some of the other public filings they describe them as after the fact evidence and therefore are not properly considered we object to that argument because it was never presented to the district court it's obviously not fair the district court razor for the first time and it's especially unfair to raise it in a reply brief on appeal as opposed to the main brief we didn't get a chance to you know brief that because of that and i just want to on that after the fact evidence i just want to briefly tell the court that the court's aware of the mckinnon decision from the supreme court that came out of this circuit dealing with after the fact evidence in in the employment discrimination context this court has subsequently in a case called kearns vs wella one fourteen fed third for sixty six decision by judge barb says that the supreme court's decision in the canon about after the fact evidence is really applies only in the employment discrimination context and if you are outside the employment discrimination context it is appropriate to the concerns of the power of freddie it seems to me that what it boils down to is that you would say your client has figured out a way to get additional mon that aren't specifically prohibited you think you have a right to do that there's no specific program bishan and i guess what i'm struggling with is well let's say you have figured out a way but doesn't fredd mac have the ability to say ok you want to do an end run around my rules it's costing me money every time i deal with you that hurts the entire liquidity in the secondary mortgage market i'm going do business with you i id page forty they say quote they other parties are prohibited from doing business with freddie mac either directly or indirectly if we look at mr pearson statement to the michigan state authority they don't just want to not do were they don't want anyone to do business with or they don't want anybody that you do business with i mean there's we understand there were big pointer in the market but there's no they're the only player in the market that's great judge but this is just like the clore situation where one dominant actor can go after suppliers since they don't supply my retailer and that's what happened here that you would agree that freddie mac has the ability to say you i'm not going to deal with you because twenty five hundred dollars probably rather tax money is mine and you think you figured out a way to take it i'm not going to deal with you anymore so you can see that that's it is ok but they can't call my client a fraud which is what exclusionary list does through their or their own examples in their through to internet  website articles where they say we put perpetrators and exclusionary lists the other articles as then that if you want to prevent short sale for fraud go look at the exclusionary less so that is a statement that my clients committed fraud and that is actionable under the defamation counts in it's clearly they they lose privilege with things such as pearson statement that are real motive is to put you out of business and just deal with you counsel think your time's expired when question you just responded and you said something like this is like your horse the case we cited what justice black's opinion ok