jurisdiction over the case fact the district court did not either because there was an in state defendant who was properly named who didn't which there were valid claims however i would suggest that to get there because of sort of layers of legality here  we have to work backwards the law against trustees who are of course the neutrals who oversee foreclosures is that they can be responsible in two ways one they can have actual knowledge of a legal reason not to foreclose and if they then proceed to foreclosure with no investigation the law is clear missouri pretty recent case them sparks that they can be liable there's an older precedent the suggest they can also be liable if they in unusual circumstances and when those exist engage in no investigation and in fact this court in a decision dismissed a claim against a trustee said that the plate the case was dismissed because there were no allegations of unusual circumstances and a failure to investigate suggesting if that was a legit would be sufficient written by judge that it was unanimous decision  if there are claims that are even colorable against the trustee then we have an in state defendant and your stiction is not proper but the i think what was argued most forcefully seems to be the emphasis of their argument is that there is no legal reason not to foreclose here and so the trustee although it knew many things simply didn't have any information that would cause it to stop they don't dress unusual circumstances as an end detail and i would suggest at a minimum those are present to get to a legal reason not to for close we have to briefly look at the law and facts that as they relate to what the bank should have done in this case wells fargo i struggle with how to say this but i think i have to say it this way and this is this this case stands out to me is especially unusual and for this reason there are five or six things that servicers have been roundly criticized by for and these are people who service and collect on  loans by every organization that's looked at federal government every state attorney general the consumer financial protection bureau every academic the economist and in finally those services who have come forward and said we will no longer engage in those practices those practices include things like giving misinformation to customers when they call no was causing a service or no causing was the trustee and so they are the person who stepped in when there was alleged default why i'm talking about the bank because if there was a legal reason not to foreclose which i think is the standard for the trustee if they knew of a legal reason not to foreclose but the argument here kind of conflates because of course the court found that there was no legal reason not to foreclose on the service or could proceed and that would mean the trustee was fine because the trustee did have a legal reason not to for close either right so in that sense the question is the same for both parties that and so i'm suggesting that what we had here was we had misinformation provided to the borrower starting with  borrower called while current this is a veteran coming back from that working for the department defense in iraq comes back and says i'm current but i'm concerned wasn't all the alleged misinformation world yes you're in the isn't there an by the bank and so i would say oral and behavior i agree that there was not a written final modification but that behavior by the bank that is inconsistent with the terms and it creates a pattern of now new payments and different payments in different obligations can be a reason why foreclosure cannot proceed on normal grounds and i think it has to be that way case that does that with an integration and your honor all oral i looked to see if the deed of trust wherever referenced in that detail in the existing cases there are three sided or brief i couldn't find the deeds of trust it would certainly represent to this court that in my experience the trust everyone i've ever seen has this clause but i cannot say that i've seen those deed to trust i could not taint them but i will that the second reason i was going to give you the statute frogs in what we learned from the statute of frauds in missouri at least in missouri law is that we can never use a failure to write something down as a way to perpetrate fraud we can't use it if there's a promis estoppel argument we can't use it if there's partial performance in this case the change in position is pretty stark my clients are not decades these are people who put a home had been paying on it for years and when he couldn't find work said said we're still current we have equity in the home let's call the bank and see if we can work out a modification it's a very reasonable position see if you can prove your condition the bank said we are going to ask you not to make a payment because we have a moratorium program but in order to qualify you must not make a payment my clients did exactly as they were told it was the first payment they missed that's in the petition they were current until that day when they didn't make the payment they called back and said can we have the moratorium they said actually it's ninety days so here we begin the inconsistent information ninety days they call back and they say we don't have a moratorium program that was in state but we have a loan modification program and you can apply at this point they're behind but only behind because they were instructed to be mine it i think we part of the deed of trust or what part of missouri law holds them accountable for the banks yes right actions well they wouldn't be accountable for the banks actions unless they have actual knowledge so the sparks case decided by the missouri court of appeals eastern district held that a  trustee must in conduct invest must conduct an investigation if they have actual knowledge of a legal reason not to foreclose i would suggest that we briefed pretty extensively that telling someone the wrong thing inducing their default than punishing them for listening to you telling them that you're going to take good faith payments from taking and then doing nothing with them promising affirmatively on june twenty third you're not going to foreclose on them for closing on the thirtieth without any notice those are all legal reasons not to foreclose in the in the thing that petition says there clearly is that cause and he was made aware of each of these facts and so in missouri the trustee sits as a neutral and the law is very clear that they should favor neither party but that they must oversee the foreclosure they do things like publish notice they receive calls from both sides they sell the property attempt to get the best price our petition alleges in causing was called and that the homeowners told them the neutral they are telling us that they're working on a modification we didn't miss a payment until they told us to and they have affirmatively promised us that with it we will not for e why are we receiving a foreclosure notice from in response cause and far from investigating responded by saying we work for the bank and you'll need to call them it's not neutral behavior it is the behavior of an agent and of course that's somewhat unsurprising because in today's modern world the neutral trustee struggles to be neutral because that neutral trustee is employed by the bank as their attorney and they do repeated work for the bank and in fact their model would suffer if they needed to talk to  homeowners at length now trustees i'm not suggesting trustees have to conduct an investigation in every case but i think the law is very clear that if you're given actual knowledge of a legal reason not to foreclose what law got a look what law says that for deed of trust trustees your honor all trust again on page twenty of our brief we set up a long detail your honor you may find somewhat interesting if you're a student of history that this is the first cases date back to prior to the civil war and what they say is is that trustees intend that the trustee l should be trustee shall be a nose of wax a mere figurehead in the hands of the creditor he's placed in a position to act fairly by all interested that's a case from eight hundred seventy six missouri supreme court it has never ever been question we see cases in eight get two on page twenty three sparks and that's four hundred south with third or fifty four i know that case while my wife argued it was a case in which the color of the missouri court of appeal said we're not going to hold trustees liable for much frankly i think that's what they said but we are going to hold them liable if they have actual knowledge of a legal reason not to for close that's as far as we're going to go we're not going to make them go investigate all sides but if they're told of a reason not to foreclose they can't charge ahead because that wouldn't be neutral so your honor that would move to something i think that you're touching on here and that is that at this stage the court was supposed to ask is there a colorable claim against the trustee is there a colorable claim in the court this court has said that the question then and colorable is it's well established that if it is clear that under governing state law the complaint does not date a cause of action against the defendant the jointer is fraudulent however if there is a colorable cause of action that is if state law might impose liability on the resident defendant of the facts then there is no project jointer first under the law i just gave you i wanted to work with that first it's clear that we have at least made it colorable claim that the trustee knew that these people were misled that the trustee knew that there were affirmative promises not to foreclose that were broken and that the trustee did nothing that's all factual knowledge in unusual circumstances and then i would show the court one other thing i hold my hand and we had it in the record cited it three orders from three different cases in missouri in which trustees were sued under the same theory and motion to dismiss was filed and the trial court denied the motion to dismiss on these facts one of these belinda smith case in kansas city was against the same trustee for the same facts in that case it was alleged that a man went to the bank said i lost my spouse and i am going to struggle to make payments in the future i'm current now and i could pay for a bit what should i do they should call the one eight hundred number the one eight hundred number said don't pay right for a modification but don't pay while you're doing that or we can't consider you then they foreclosed due to the default they file that this case in january of two thousand and twelve after it was removed they voluntarily dismissed at that point they then brought a new lawsuit adding causing me as a defendant in an attempt to defeat diversity jurisdiction it was removed the court examined the issue of whether or not cause and he had been fraudulently joined and determined that it had now interestingly the sparks case which was mentioned in the appellant's argument was decided in april of two thousand and thirteen this decision came down in july two thousand and thirteen the decision to to dismiss the claim that it's causing what is significant about that is that this sparks case  is that they believe that there is a problem does not trigger any such duty in fact in this case there are only two claims that are pending against there were pending against cause me at the time the court examined the dismissal one for negligence and one for breach  producer duty the negligence count actually asserted that because nihad assume the duty and responsibility for servicing plaintiffs loan far beyond anything that's ever been countenanced under missouri law and secondly they claim that there's been a breach  producer duties listing various items such as a failure to investigate but the sparks case definitively said that those are mere statements by a borrower that there is a problem or perceived irregularity does not trigger any duty by the by the trustee under missouri law what sorts of actions by the body corporate tween the bank and the trustee would trigger some responsibility to stop the s talk about there being some actual knowledge on the part of the trustee if there's an allegation that the trustee actually knew as apart from simply being told if he had some special knowledge that he gained from the lender of that the that the foreclosure was that was was not warranted and yet proceeded to move forward anyway that would that would that would rise to that level but what this virus case tells us is that we have to look at the contract we have to look at the deed of trust to figure out what it is honor there is a general duty of impartiality and fairness that is implied is implied by law but the spiers case tells us that we look at the four corners of that contract to determine what exactly the trustees doing and whether that runs  and the district court did that analysis it looked at what was in the trust the trust such as mailing notice of sale to the borrower advertising the sale selling the property auction the highest bidder for cash delivering the trustees deed to the purchaser all those things are outlined in th of trust they found no allegation that the trustee had anything anything improper on that and no allegation of actual knowledge of anything else that was wrong and remember what they sparkes case tells us is that merely the borrower saying there's a that the sale right after that was was moving forward and i'll talk about the whole it while tom lee analysis regards to us fargo but you have to look at the totality of these allegations five different modification attempts for the four different occasions the borrowers were told that they were in foreclosure the borrowers rejecting one modification so looking at that in total there was there was nothing there that the district court saw that rose to a plausible claim of address the argument against the bank on the merits that was highlighted today and that is that the only time the only reason they went into default was that your people told them not to pay in order to take advantage why this case should be dismissed there was an eighteen month period in which there were there are allegations of back and forth between the borrower and will far ago and i urge the court to look very carefully at the allegations of how they're and they had to be in the vault there's not a statement in there they were told not to pay there's only one not to pay statement that comes in march of two thousand and nine but after that after that there are a series of events such as the borrowers being told on four separate occasions that they're going into foreclosure the borrowers being told in august two thousand and nine what's the sooner you so that you mean they were then on notice that they should have paid the amounts that they didn't pay earlier exactly and the district had a chance if they'd withheld the payment look the court context pacific must look at all of the allegations to see of what is alleged is plausible and that's exactly what happened in the cox case from the eighth circuit in two thousand and twelve there were allegations that the borrowers were  as a whole there was a reference to the lowing allegations but the lowing case law under missouri simply says that if there's been an allegation of allowing and there has to be some sort of notice that a gratuitous promise not to enforce the black letter of the of the contract is no longer going to be on or so in other words you have to say something to the fact of well i may have told you not to make payments then but you've got to you've got to pay now that's exactly what's alleged throughout this throughout the plate is that the borrowers were told repeatedly that they were in foreclosure status and in fact one of the allegations in april of two thousand able to thousand and ten they were told that they needed to make trial period payments three payments and then make a balloon payment at the end that wasn't done and so as a result they were unclear notice under the cox and practice standard of what had to be done to to prevent any as well as a negligence and negligent misrepresentation claim and goes into detail about how there is no duty under a negligence theory how under the him in p a there is no connection with the original sale that the vast majority the case law is on that course is whether the complaint states a claim basically mr martin i think covered the issue of the denial of motion remain and i'd like to focus my attention on the two counts to the court  proceed to conduct the sale without conducting an investigation so long as the trustee has no actual knowledge of a matter that would legally preclude the foreclosure and basically that the district court parse through trustee and or the other class of allegation there contentions were really legal conclusions which of course the court could have completely disregarded in revealing you know she dismissed but it did the court actually analyzed them your opponent so citation to linder smith as a case that indicates missouri recognizes a claim factually similar to this to a trustee point one if that's an un reported decision unpublished opinion and under this court's rule i believe the rule says that is not precedence so procedural i think there's an issue this is a state  court decision correct correct but it but what about all assuming it's going to go ahead thank you in fairness to the judge who wrote that opinion i don't think he intended for this court to rely on that and secondly the missouri law once we get it and look at it do you think it's a correct statement of missouri law no i do not i'm confident that had the court dismissed that petition that dismissal would have been held on appeal consistent with the sparks case which it might state a claim against the trustee i believe it's entirely valid but i would suggest that in addition the lender smith would ask that we can supplement i believe is properly in the record before the district court and which in repeal which we have both cited in our appellant briefing given the dock numbers and sides those are three different cases across the state of missouri in which trial courts have said this is a proper claim against the trustee to suggest that it could never be that it that there's no way it might be proper is to disregard three different orders it also has to disregard the test you heard which is is that did the trustee have actual knowledge of a legal reason not to foreclose actual knowledge we called and told them the argument that telling them affirmatively what's going on can't be actual knowledge would mean they'd have to hear from the bank the told them things that don't amount to a claim against the bank you know the words if the court agrees that the order on a motion to dismiss was correct then would it follow that there was no collar will claim absolutely yes your your honor you have the steps exactly right and where i was headed in that last moment was to say that in this case we have pled that the bank provided misinformation that induced a fall we've cited the cases that say you can't load someone in and then punish them for listening a party has a right to  performance they suggest that after that they're in default they should pay except that now there are fees and penalties there are late charges and overdue amounts in attorney's fees because they're behind because the bank told they made good faith payments when they were asked and they were promised only a week before foreclosure affirmative foreclosure would not occur they only found that it did when they called to say hey we haven't heard from that negotiator and they said oh we foreclose on your home today now if this court affirms that there was or not legal reasons not to foreclose it means that everything that has been challenge about servicers the regulations that are in place to stop the very behavior i'm describing the claims that are pursued all over the country about him have been wrong it is a colorable claim for a legal reason not to propose a colorable claim against the trustee and for that reason i respectfully suggest the subject matter jurisdiction is looking lacking in the court should remand a mistake