good morning daryn burner for citi mortgage there are three primary issues that i would like to address today one of them i believe is different from the other cases before the court and it's where i'd like to start because it's potentially case the of it's the bankruptcy issue the h away in this case reported both of the st two of three required notices the delinquent assessment lien notice and the notice of default in violation of an automatic bankruptcy stay at the district court concluded that because the auction portion of the non judicial foreclosure sale was after the state was lifted that there was no stay violation and respectfully that was legal error under the any action taken in violation of an automatic stay is void and as is a constant theme i think we see in these cases and in particular these issues we've had a series of intervening authorities that have come out since the time that this water was issued what's your strongest support place the strongest support would be it's a nevada supreme court decision so the bankruptcy components are not binding but there is a state law component to these and that's the ellen management case three  case it's much like this case although this one's unpublished it was issued before a judge made hands order in this case only one of three notices violated the automatic stay but the nevada supreme court extended that to stay the fact that this notice was void impeach the entire propriety of the sale and it set aside the entirety of the sale we believe it's consistent with a child has a different question that's a state law question about closure procedure it's not a federal question about what constitutes a legal proceeding that would violate the law in that exchange i think that's fair i think it's fair that we don't have a federal court case that says this is what happens in  remember it because as my colleagues are several a lot there are a lot of moving parts but i don't recall that this was an argument that was made at the district court  this born valley was good law and we had every reason to believe the born valley ended the inquiry that's the mind set of the parties who work and it's not just born valley that's changed we've got to if i can move on to the commercial reasonable  later the jessops argument across the board things have changed the nevada supreme court has issued multiple opinions that we believe are an opposite which edge may hands opinions and he's even said that himself in at least one case that we've provided to the court  we've got moving to equitable balancing we've got three factors of unfairness here three primary one is the bankruptcy violation issue if it doesn't void the sale automatically it in the least impeach is the validity of the notice as we know that under in re schwartz if you look at priority portion of the lien i understand it was just a letter there was no check i do want to address that momentarily but focusing on judge may hands findings he said it was bad because it didn't offer to pay the full amount super an he said it was bad because it didn't offer a nuisance abatement despite no evidence there was any and he said it was impermissibly conditional each of those points has since been raised and rejected by bank of america versus s at far the diamond spur decision judge may hand recognized that himself in one of the many related cases called log cabin which we provided in our notice of supplemental authorities that n a s didn't accept a valid offer is another factor of unfairness and rd we have the  ways representation in its publicly recorded documents that no action to enforce a violation of the deed of trust will extinguish the bank's interest again back to footnote eleven of the shadow canyon opinion it says that that type of representation is a balancing to trial golden and shadow would tell us that where price disparity is great only slight quote unquote only slight evidence of unfairness let's we appreciate that so let's go through the good notice that your argument is forgive me for cutting to the chase but i want to give you an opportunity to respond and your argument about notice is that it was invalid as a matter of state law not that you didn't get it and we're really talking about unfairness so you had notice albeit during the course of a bankruptcy proceeding that doesn't strike me as particularly unfair apples and oranges your honor because i don't think i mean we have or notice issues brief the last change so much i tried to focus on what matters the equitable balancing argument under shadow would and shadow canyon assumes notice was given assumes there was a provision says no action to enforce a violation of read the whole thing but no action to enforce a vile no action to enforce any such provision shall effect defeat render invalid or impair the lien of any mortgage the action to enforce was the our say if we foreclose on this property if we do our action to enforce the lien we will not defeat the day for your argument but i i don't think it goes to my question but i think you've done the best you can get out of your way as to the your best argument about unfairness or equitable relief is you don't think the notice was adequate well we believe in not valid under state law because it violates what we think it's not valid under federal law too because it violated the bankruptcy stay but you don't have a nevada state law saying that where a notice of the right under these circumstances was served during the course of a bankruptcy stay as a matter of state law that notice was deemed invalid is that right that's what we both believe under have i do want to mention st full disclosure the supreme court recently referred jessop on barak although it's possible the opinion could change its own likely because a majority of the court opposed even rehearing the matter anything's possible at this point but help you jessop found that a letter like the one in this case admittedly doesn't amount to a tender but he did form the factual predicate for excuse of tender based on futility jessa point in just that there was an affirmative statement that we're not if you want basically what they said was if you want a full payoff and we ask for a super priority payoff and they start talking about escrow demands and title clearly they're talking about the resale of property there are multiple inferences i would agree not my point my point is i guess or my question is much simpler than that you sent something in the way and to the place that you thought was appropriate you got a response saying we need this in a different form to a different address and you did nothing as far as i can tell this septra you i think that that's true but i do have to add one thing the the response also says we will give you a different thing which isn't the thing that you asked for i have to concede there's multiple inferences that can be taken from that letter but we are on a summary judgment standard here in the words to say that we're going to give you a different thing well they stand your request for a payoff please be advised that all pay off requests must be made it doesn't say we're not going t super priority amount is well miles our course didn't just request a payoff from the miles powers request was very specific again precisely to where it should go please provide a good if you go look at this is there any evidence a man went to look at this website and found out that you couldn't get the super priority a think here's here's the bottom line i think it awfully that this addresses your question setting aside the inferences in our favor again this was briefed at a time when jesse didn't exist we didn't have the opportunity to present the arguments because just it didn't exist the arguments the record that we would be able to present and we would have presented of two things have been different one if we hadn't relied on born valley as we justifiably did at the time as different but i but my point your honor is that we we had no reason to hype hypothesiz it think about cases that didn't actually exist at that point in time because we had a case winning argument we would have had to find i understand you read i'm born and then born went away and that's put you in a bind but i'm trying to figure out whether you made this arguments are an hour or an hour mean you but you know if your client advanced this argument or can show that any it in other words use you've suggested that jessop helps you jessop is a case that says you don't have to tender  if the homeowners assessors has said we're going to reject another which that would be futile and i'm trying to figure out what your best support is and i think doug burns on his to judge because i think you you you inquired they said you need to submit something online and i i think i read the record the way judge gruber does which is that you your client didn't respond you conceded as much so where are you what's your best shot here we don't get there without remission because we don't get there without remaining for the court to consider the jessop case and the evidence that an when you say it's on the records on the record that n a s took the position that it would not accept super priority that's the position it was taking in these cases that's the position it was taking in these cases would you argue that in your briefing to us we did we argued that in the the  request to remain which was in response to the court's order but it wasn't in the underlying briefing your honor because jessop didn't exist again we were relying on the viability of born valley we did argue that the offer letter itself was a tender but briefing earlier than some of these other cases that are before this case was briefed before every single case that i've mentioned before dime inspir before jessop before you know for that matter before arlington before all of the supplemental authorities and we've even gone over the ones that say you know on equitable balancing you've got to look at how low the price is and then you determine how much unfairness that you need i mean that's the issue here is it's a matter of fundamental fairness for this is a incredibly evolving and unique area ok well i mean and you know like five minutes over your time but but we are awash in supplemental thirty i've been nothing but read more than anything i ever wanted to know about foreclosure law in nevada been reading reading reading reading reading but but you can make the argument that's my recollection right and i think that you just argued i mean i've read it you've you argued jessop and in that sample that is correct yes that's ok thank you very much  specifically that there was any violation of the bankruptcy stay here as the core correctly noted there was no argument regarding the bankruptcy excuse me regarding the bankruptcy stay below and in fact there was no evidence presented either yes but the judge sided reciting the facts in the complaint that talk about the dates in the timeline those don't seem to be contested and he reached the issue so do you have any authority about well your honor i have a i have some factual story from the from the bankruptcy itself it's a the discharge of the debtor is what terminates the bankruptcy stay had there been any evidence presented to the court either below or above it would have demonstrated that the bankruptcy state terminated on he had those states that are alleged in the complaint he cited those exactly and so the discharge of the debtor occurred long before any of the notices were required right and we're what we're trying to get at is opposing counsel sarky amount which is that the notices that were filed during the course of the bankruptcy just the notice and so each of those talking about the interval the delta between the discharge and the date the file was closed exactly or on of those notices were were made between the discharge and the date the file was closed but it's axiomatic that the bankruptcy state can't speculate but what i can suggest is that my understanding is that if there were at that at this particular time frame a ledger would have been provided and they could have accepted a payment i don't know whether or not they would have opposing counsel argues that during this timeframe when things were admittedly up in the air and i'm not i'm not casting aspersions i take that as a given that the state of law is up in the air and any his client certainly had good reason to be lying relying on born valley for part of this period but but his other argument is that during this time your client was taking the position across the board in many cases that that that tender the super priority provision would have been futile that they were taking that i'm sorry if you just heard him he just said that during this period of time your client was taking the position response to these inquiries that wouldn't accept just a super priority provision is that right well to be clear your honor i represent the purchaser of the ok was it the same homeowners association and involved in the cases that you're involved in now it's my belief your honor ok thank you so the short version is you don't know whether what would've happened if he actually had got to this website well your honor i don't know specifically what would have happened a good law right i'd i believe the born value had not yet been expressly overturned however than about a supreme court had clarified was that they had once or thirty right they probably feel pretty comfortable about that and then the now the nevada supreme court thinks otherwise and we understand that but to go back to judge present question why why why would they they're not really required to right sort of make every argument in the book that's now they're supposed to argue that even though this notice was was no no is no good you just told us that the th circuit just in case the nevada supreme court decides otherwise and then you decide otherwise i'm going to make another argument put in some other facts that have nothing to do with that well your hon my position is that in light of the fact that board valley was a limited decision which was questioned at the very minimum questioned by jurists both in the federal system and in the state of the law the th circuit the law in the th circuit reason to and so and go into the any factual questions of what would have happened if they had followed these directions and while it is well it's understandable why they declined to make those arguments i don't believe there issue that's different but if what could have affected the factual development i'm i don't know what what law you're looking for but i can tell you that we've done plenty of times and the difficulty in this case is the clerk's office not our panel but the clerk's o order asking folks what about born valley and the response we got in this case really does point to jessup and your honor our response was that that that failure to raise those arguments below resulted in a waiver and i want you both forget below what about  exactly right and those arguments were available to them below they were made in other cases by this firm and i believe by this appellant when you keep talking about below that's not that's not really going to present a question ok he's talking about that's all pre born valley raised this argument in other cases similar similar cases this futility argument and yet it declined to do so in this specific is instance this was not a case in which this appellant had no idea that this argument might be available to them they elected not to make it in this specific case and that is to their detriment thank you very much thank you well one minute and a half i think i may have to go back and watch the tape and i think i misunderstood your argument about bankruptcy about when the notices were filed when i misunderstand you know the desk debtor but the property of the estate as well so that's a key date but i really wanted to focus in on the n a s issue counsel said he's not aware of another case involving this hill where there wouldn't be it's the trustee it's the biggest trustee in nevada in a yes they were because that's where we need to look right that is that your response to the clerk sir i've got it right here actually is it because it's at my fingertips i don't have the response to the clerk's order of my fingertips i'm sure it's unlike binder but it was raised i can see that it's raised in detail in the jessop is the published opinion i'm pointing out that there is a case of show that it would have been futile and the problem is you didn't respond to the direction to submit your request on line and now you're wanting us to say that we need to go look at this case that we don't have an already four  case law that said that that proffer of was sufficient there are no bad cases that go back several decades that talk about certain instances where tender could be excused and i actually do think that the some of those were said in the briefing but none of them addressed futility and it's also a safari whether or not it nevada supreme court says here's how you're satisfied here's what you can do including when they haven't given the super progress priority portion wh do is you can pay the whole thing and then you can see it right you know that case law so they had said how dissatisfied i absolutely and what i can tell you in every one of these cases and it's and as a sworn testimony across these cases they never would except nine months in satisfaction of the super priority they rejected everybody i can but you have even the the entire did you have any amount at that point you know where just the full amount of the lien that they mounted them as a full amount that we had but that was super and so the next case you're going to hear i could have paid the super in sub in the which is that you know you have the amount you didn't follow through with the online request so you did happen and ability to pay the whole amount you did have a way to do that you did but if you find that that we lose on the basis that contradicts the diamonds for opinion the published opinion from that about a supreme court that says all we had to do was pay nine months plus nuisance nuisance abatement if there was any yes yes and you never request so you don't need to do it was there any i mean there's no no evidence of association is submitted