later three weeks later in state court that also referenced the issue of foreclosure and that it in additional claim of the injunction injunctive relief at that time both  greentree the apple e currently here also known as di tech and bank of america or defendants in the case neither bank of america nor greentree moved discovery and that's what you're referring to those responses came back and where a dollar amount was asked or for damages and those discovery responses use where the dollar amount was more specifically provided which was not necessarily specifically provided in terms of damages in the petitions but as a court is aware is along the circuit and has been for quite some time that the issue in injunctive relief cases as well as foreclosure cases is the value of the property and the value of the right occupied the property or the value of the kno correct but what has happened is is the note balance is increased by eighty thousand dollars due to what we say was the underlying mis actions and misdeeds of the debt collector but on the issue of the of the removal your honor it did the key there is is that in the green trees oh notice for removal they specifically state that the issue of the cases foreclosure the property so that was evident from the filing of the original petition and state court had nothing to do with the discovery responses foreclosure of the property is it issues there was nothing in those discovery responses that even mention the issue of foreclosure the property so they didn't come to that conclusion by looking at the discovery responses which is what they're telling the court case we believe that a court cannot disregard their admission that quote foreclosure proceedings on the property are an issue and that's what they days but the original petition that was filed that did not include an amount that is correct your honor and they specially accepted to it and then therefore an amended petition was filed three weeks later think but that's is that's a max rather than a minute and in that the problem well you know i think it's a bad state rule for issues just like this i mean you have to say hundred thousand means about the property of the value that note and nothing in the discovered responses addressed that that was there in the original petition from day one the issue for closure and they admitted that just the court this court has made it very clear in the male case in two thousand and four we cited in our brief that the liberal pleading standards of fifteen may can be somewhat misleading to district that there should be some some parameters on that this is the district court denied the attempt to mend the pleading based upon a finding of undue delay and  so therefore there is no there was no argument there was no showing of undue prejudice by the belief whatsoever they didn't mention a single sentence just saying allowing the pleading would und were expanding the additional cause of action which was before that was already before the court and we were adding additional causes of action that is true but it was filed in the middle of this government period there were still five months left before discovery cut off when we moved for leave to do this so there is no prejudice not a single deposition had been taken at that time the discover they would require didn't students of a people with discovery process it was five months before discovery cut off six months before the dispositive motion deadline nine months before trial so the idea of prejudice is not only  would like to hear how you win and absent us as a federal court changing on this modification is that collection rubric yes ma'am that's the the the federal courts  been you know misled and so and so forth and in the modification process never in those instances was the possibility of a modification a lot and that's what was here because the lender at that time said they would send a modification packet and they never did both a court properly found that that was an affirmative representation that turned out to prejudice in harm and the homeowner and they were not given the opportunity to even have your home own homegrown considered for modification so this is not a modification discussion in this case this apple e was never going to offer a modification and that was finally learned in the discovery by their own director of collections collector had no idea where the previous loan application was it was submitted to bank of america when in fact we found out later that they had it all all along twelve six do in the record twelve sixty nine paragraph twenty in the deck later collector say that had its own modification options for the note and that the separate apart from any sort of hamper modification in the record at twelve sixty nine perry way of twenty the debt collector said the modification was the best option and it went on to say that modification was not just an option or possibility but rather would be in actually would be available to the homeowners in would be granted if submitted if they submitted to the survey that's pretty questionable for that yes yes ma'am because because the yes your honor because the director of their collections admitted in his deposition in this is it the record thirteen thirty six that there was never going to be a modification offered to texas home equity loan and they had already preprogramed their computers to deny that based on a corporate policy some two and a half years early back in february tw so the corporate policy in the programming of the computers that the collectors are using was going to deny and never offer a modification of the texas home equity loan despite the fact that green tree was sending modification or was it something that they discovered later on that in spite of efforts to try to have a loan modification they discovered that it was not available if you speak in just pro you speaking of the modification was not an option absolutely not we were told they were told just the opposite for at least the first five or six months of the interaction and then about halfway that five months into it the debt collector finally told them that you were not going to ever be available for modification but then they continued to solicit modification options after that from the from the homeowner so for f and twelve di tech began servicing the strong's home equity line and it's important to note that at the time they began servicing it mr straw was behind on his payments but he has represented this court that at that time he could have made up his payments but instead he wanted a modification prior to september two thousand and twelve di tech and many other service station that he made at the end which i had understood to be to practice at a new case the fact that the case for the texas supreme court to make the decision on sam's and once the court made the decision on sam's he applied for modification again he was granted the modification so he has obtained h fourteen and he would've been granted that sometimes towards in the fourteen so but i will addressed i mean one of the things we did put in operate was it's our belief that he had a modification and therefore you know it moves everything but i will address all these issues in case the court determines that maybe it didn't move everything else like what he's claiming is that he is claiming a lot of different things but it all is based upon the debt collection act of guy and it's our position that whatever take did it didn't violate the debt collection act as a matter of fact his petition if you take a look at it isn't a petition the only thing that he says in his admitted petition that we did was that in correspondence to him as one of his options we offered a modification and these are these are workout options basically yeah we can try to give you a modification we can try to do a reinstatement we can try to do work out with you we try to do a number of different things with you and one of the things was a modification and his sole argument against us is petition is that we knew we would not give him a modification at the time we used the word modification in there and there's two issues on that number one arm the reason that that servicers at this time those that chose not to were not giving modifications on home equity loans is because there was a belief that if you capitalize the loan it would put more money into it it would violate the texas constitution so there was one aspect of texas atomic realised that they would modify they wouldn't do it if you needed capitalization they wouldn't do it if you need a balloon payment they wouldn't do it if you needed have an even payments however if all you needed was a reduction in the interest rate then that didn't violate the texas constitution and on december the ninet what what happened was what he what he did was a survey ok and in this survey you answer certain questions about what you want and if you recall at the very start of this argument what i said was he had the money he represented the court to catch up on his payments which meet all he would have needed was an interest rate but he didn't want to do that and he wanted a modification which would have meant capitalization so when he goes to this survey what he's asking for is a capitalization issue so when the survey goes t naturally it turns him down because we can't do that and the december nineteenth two thousand and thirteen letter that comes back to him telling him sorry we can't do it is specifically says in there we can't do it because we can't capitalise these things we can't have any payments etc but then the bottom it says you can still look at other options who initiated the discussion with regard to modification was that you or was it y either i'm not sure you are but i'm sure that when when when they would have called them about past their payments it would have been brought up because during that time period and during this time period servicers and mortgage companies want to let people know about modifications ok because that's a way for them to catch up on their payments it's a way for me to keep their home it if you want to get a modification it works out better for everybody so during this time period letters would go out about modification except but even if even if there was not even the the chance of doing a an interest rate reduction for modifications still all of these discussions so if you're going to sue and this is the only cause or actually had if you're going to sue under the texas debt collection act whatever you're still about has to deal with debt collection not a mortgage i'm sorry i don't know do is the people get behind he said that something that says your thousand dollars behind you twelve hundred dollars so they do have debt collection activities ok but the law clearing i guess i have some confusion that if it's a debt collection there are certain things that apply but if it's a discussion about loan modification then you don't have to follow the strict rules and it seems to me that under some circumstances an attempt to get a loan modification is also an attempt to get a determine if a loan modification modification is a debt collection or a debt collection is it under another name as an effort to get the money towed there's a number of services that  service or provides which is i guess the reason for the name service or they may pay taxes ok because they collected escrow it's my position that if they're paying taxes that's  service they're providing there's not that collection ok if i if a our customer calls in and says i'm confused about what's going on with my life i'm ok and they answer their question that would not be a debt collection service ok modification discussions are not debt collection activities is because what they're trying to do in the modification situation is not collect the debt it's trying to provide a service to the consumer so that he can nd i think that the law of the circus fairly clear that if it's modification type discussions then it's not debt collection in our position in this situation is that all of these discussions that di take had with mr strong were modification type discussions whether they were discussions on trying to trying to reinstate a loan or discussions  tried to modify our discussions on whether to to work out a workout plan whatever all of those a modification type discussions and therefore at least according to thompson they would not be considered to be debt collection activities that are payments you make payments to that to the to the service or and then after the trial payments are or are completed then the the modification is then completed you've got your modified loan and so all of all that just takes a little bit of time in order to capitalized and becomes principal then yes so what's been paid oh i'm not sure how much is paid even make it whatever the payments are required under the terms of his modification he's been making those payments not the back payments well what happens is the back was a foreclosure case that should not have been in there and just because we say something is something doesn't make it you have to look at the petition itself and if you look at his petition that we removed it's pacifically in there that he is seeking an injunction ok but the injunction is he's trying to do is number one he wants to enjoined us from doing any other fair debt collection practice violations and number two he wants being bank of america and by tech because we and he knew all this stuff that he was going to put in as his is i mean a petition back in two thousand and twelve or two thousand and thirteen meaning that he could  two thousand and twelve or two thousand and thirteen added everything he wanted to put him in the petition into his original petition but he chose not to and the the district court probably found that there was undue delay because he had white all this time to do it and the other thing was there was a scheduling order that told him when he could file his amid a petition or leave to file it and instead of follow the local rules which would require you to attach it to the pleading instead spout a short motion to a man and waited thirty days or twenty five days or so to father actually a minute petition itself so that we could even look at it and so the court found that that was entitled to and as far as undue prejudice all of a sudden he was her justice pro the dividing line between the collection and loan modification discussions is when loan modification is actually in existence about the option here was a misrepresentation and a lie that was so this is a debt collection cases as a debt collector collecting a debt every communication that they had with the homeowner from the outset that they entered the picture and took over servicing demanded payment two weeks after they took over the servic ing they said the demand for the entire balance of the know two hundred thirty four thousand dollars to pay this was a dick collection this is a debt collector attempting to collect a debt at all times for the first five for five months when it was still unknown that they were never going to offer a modification they could they demanded a payment from the homeowner in every single commit communication verbal e and over the three were in writing and that's in the record and estimated ten to fifteen times they represented that not a modification was an option and they demanded payment until we saw the homeowner submitted to the process long modification so the reason there's been a federal carve out instances like this where folks were in discussions with the lender for modifications the federal carve out has been that is really not the collection of the debt it's the renegotiation of the terms of that but in every one of those cases modification was really a possibility never in any of those cases was it later discovered that the lender or the debt collector telling you that loan modification might be a possibility really had its computers programmed the entire time to do not what you submitted to their service which is a soliciting information about the data but here we have a situation where they were negotiating in good faith not knowing that the constitution did not allow for it and they did not discover that till later on when they were told under the law you can't modify this so i mean it wasn't a situation they were acting in bad faith and knew it could not happen the people you were dealing with it i did think it could be i'm out of that's a that's not make a difference the reasonable it does not under the law debt collectors under the federal say or the collection act as well as the state your account you're held accountable for misrepresentations you don't get a pass for not really and there's no there's not and to it's got to be a misrepresentation it was and that's the federal statute the standard  also the texas state standard as well so debt collectors just to just to prevent issues like this are hilda's you as a court know if you see the case of all time there he'll do strict state and strict liability standard if you misrepresent you misrepresent secondly i don't for a moment believe that the record supports a good that this was a good faith argument about some question about the law first of all there was no case or opinion in existence at that time that said you could this is just simply this debt collector providing having a corporate policy in place two year and a half before they took this loan over that they were not going to offer modifications on texas home equity loans had nothing to do with any ambiguity in the case in law there was no cases said you couldn't at that time and their director dick collection said they instituted that policy quote for their own well being to protect the company's interest debt collectors cannot make money by stabilizing loans and modification they make money by collecting debts and remedied a month to one month to month three months or refinanced or something but i mean this court has an opinion on that very point is well if the misrepresentation is a misrepresentation then that's enough and the homeowner is then robbed of other opportunities the homeowner did have to carry out in and show it's robbed of other opportunities refinance