motion to reconsider a motion to reconsider based on supposedly discriminatory comments made by someone affiliated with f d r c in investigating this is on petition for review from the see and you filed a petition for review from the underlying judgment or a ruling order whatever i didn't see a petition for review from the denial of the motion to reconsider and i question that we even have jurisdiction to review that point in the light of no petition for review having been filed contesting that i note the f d i c fails to point review from that ruling it was like in say immigration matters if a party files a motion an appeal with the be a in the be a denies the appeal and then they file the subsequent motion reconsider i knew petition for review is required to challenge that denial of the motion to reconsider and i'm just i haven't researched the us other than questioning whether we have jurisdiction so  going to the basis upon which the the summary judgment was was granted and the fact that it was based on own examiners affidavits it turned out those examiners exhibit a bias this issue  agency but there is a appeal on the district court of free enterprise with judge feldman who saw all this evidence and noted that this is these are serious allegations that require judicial scrutiny i do believe that subsumed in they they've accepted they have ability to to waive their rules the way the requirement of it to being within thirty days which they did and i don't that's not true instinctual and i thought of that issue and they have there are many rules and so three  evidence for these monetary penalties is that we're asking would now we're looking at substantial evidence for board first of all the summary first of all the summary disposition was i'm wrong as a matter of law second of all there was no factual basis for them to say there was a need for it with their wrong as an issue of law there was no requirement for current appraisals and they're absolutely wrong when they pulled out a home for nothing the fact that we're changing market conditions i guess what would help me most is your best authority any circuit as to whether reviewing just to ask whether there's a substantial evidence to support the penalties or whether we're reviewing to inquire if there is just any material issue of fact hundred fifty thousand dollars there was a two thousand dollars nine loan for seventy five thousand you don't need it for an appraisal when you have an existing extension of existing credit ok there was two thousand and six of two thousand and seven appraisals the issue is is that does the loan present more than a normal risk of nonpayment and it seems undisputed that is credit history was very problematic at best but but just just as a fact the credit history and then is it also correct he wasn't current in his payments there was no present ability to pay so if those two facts are correct then this your argument for reversible error turns entirely on the collateral issue on a collateral base law and that's what lenders make collateral based loans all the time in ram loans because the collateral sufficient to make loans get around without recourse they make loans obama playing so the term you it would just i mean i'm no great financier but it would seem to me that the rule can't be that any appraisal however old if that if the only appraisal they've got is ten years previously as to the condo that would suggest more than a normal risk of not payment it's entirely a collateral based let that is correct that may be correct your honor but the says provided that market conditions don't change if you appraisal within a year or two of the loan and the market conditions have stayed the same if you're the bank's board knows that ok that's good but but you don't come to grips with the economic downturn and again it gets back to the judge who consumes question which i also have that you know normally we look for an arbitrary and capricious ruling we look for substantial evidence here because it was the summary disposition ardley review is the noble and i'm not quite sure how that how those two interact up the no but we've never had a chance to go forward to put out we did but but the the board look and approved lender would say i have an appraisal that is within a year or two that nothing's changed on it and the statute says you don't need the regulation says you don't need to have one unless market conditions have changed lack of a current appraisal is an appropriate factor to consider in determining whether or not in evaluating the risk of a bar repaint but you don't agree with that ice but you know it's a combination of many factors but imo and right now i'm only asking you about one and the one i'm asking you about is the lack of a car on a price are you saying you do not agree that prudent lenders should look at the age of an appraisal that it's prudent to look at that and consider that factor julie late and they're also saying he doesn't have current assets to repay so if it's a multi factor test they've got every warning flag up and then they don't have an immediately current appraisal hard to see that that would be failed this more than a normal risk and then the affidavits that you submitted in opposition summary judgment were just two paragraphs long and it essentially said we knew him and katrina hit and he's a lawyer and so in the end he repaid  the knowledge of market conditions not changing because the f b i cia old jason o market conditions change because the up what happened in the united states but down here things haven't changed things were doing better at that time if you look at the local marketplace it's considering it was a vice president but he was a vice president of the but the definition above doesn't say you have to have a resolution just says does he participate was authorized participate in the statute is in the disjunctive it talks about participate says paid in the affirmative the f b i say now makes or per se that you could be an officer even though the statute the footnote says you know titles don't matter and if you don't have a resolution tough luck your executive officer even though you contrary to the rule making authority that he had deemed and changed it to consider it's not it's not a title to chevron deference in this case it was just wrong and that should have gone to somebody just position to see what this officer did  participating what with the evidence of his limited authority the evidence of what was heat but the affidavit the board said the board members all the board members said he had no authority to participate and he did not  i will start with issue about the value of the collateral i want to start with you about whether a separate petition for review was required to challenge the ruling on the motion to reconsider your honor the has rules do not provide for motions for reconsider us so i am not aware that somehow their records were still all they could have been provided we would want to do more research on that and if you don't mind submitted twenty a jury letter this is something new for us because we don't usually allow motions for request or it is not part of our rules we do allow into motion to reopen the record and those are delegated to the executive secretary to decide and he or they tried to introduce new evidence  regulation all violation and on that i feel because they're pure issues of law given the undisputed fact on some of them the distended could be done although but on the added on the penalties where the penalties were excessive  stammerer disposition standard here is probably don't know about they also have raised a separate issue in their brief on what a death penalty is were excessive and not that it would be arbitrary and capricious we believe so there are two different standards for the two different issues so going back to the value of the collateral they set for that the market had not changed and under the f d a regulations you're only required to get a new appraisals if the market conditions change and here it is that market hadn't changed but bob but actually the evidence in the record there was a letter from director himself saying that the reason why his providing additional collateral in addition to his the loan on his residence was because the market was soft so there was an admission and a record of the market conditions had changed and i mean this is common sense that everybody knew the market conditions had changed and it would if they really had and change would have been die hard to get a new appraisal showing that the market had been changed but if you look at the evidence that they try to introduce in their motion to reopen one of them is the order against the revenue of their motion to reopen or their motion to well on excess we'll give you the loan because we've ascertained your current appraisal for collateral exceeds the bill you're still saying that you could premises violation on that yes yes you're right because banks are not supposed to make  i think i just argued a case that i wanted a nine circuit in which there was an inadequate the borrower they did not verify his ability to pay was a low doc loan and there was actually collateral and there was a take out commitment because he was a it's a very clear and one condition is that they do not actually participate in policy making this is the evidence they tried to introduce and we do not dispute it they tried to introduce just evidence and they would have might have satisfy one of the conditions b judicial notice we find in the record and again we don't know you don't fall record eggs are we've got this big administrative record where we're going to file what counsel for the f t c just said about director kay's own admission that the market was soft if there was a statement he wrote someplace i think that says something about the market but the but there was absolutely no no basis for them to say there was a change in market conditions there was nothing in there there was no value free cited in the f t i c's affidavits there was no mention of change of market condition the bank board is right here for five blocks away knows new orleans knows what happened katrina knows that this whole day where this is the same neighborhood the courts which is doing what was doing exceptionally well in fact was borne out by a two thousand and eleven appraisal right afterwards that said that came the same market conditions it was cited in the record how things this is a very vibrant neighborhood you know your honor that's that's the big issue right there there's no evidence for it again this is a summary disposition we never had a chance to put on evidence to talk about the market conditions he just the a l j on a summary disposition with summary execution he may have his mind he was ready to give a summary disposition and now allow us to put on any evidence when it was clear there was nothing in the record to support his judicial notice but there are critical there is critical errors in there the statement that you have to have a current appraisal goes against praises so she's taking cases that are unsafe the sound of that don't apply in the circumstances i do chapter eleven bankruptcy people come in all the time and make debtor in possession financing loans and they make it on the value the collateral not the credit not t repayment the value of the collateral if i am a plaintiff's attorney and i am have a practice i best in my cases i don't waste my case my income goes up and down but i have a million dollars of exxon stock with a basis of fifty thousand dollars i don't want to take the tax hit on this so i pledge that stock to the bank and they give me a loan for six hundred thousand dollars that plateau based look my credit might not be great i might not have available cash flow but on those circumstances there is no more than a risk of repayment there you've got look at the collateral and they didn't look at the collateral this was a classroom based loan and that's the problem here now on the on the officer of the matter they just misread this that they misread they've created a fear rebuttable presumption where the statue itself where the congressional tenet is either you participate or you authority to participate they have taken one line out there and said well it's if you don't have a resolution it doesn't if you have a title vice president you're your executive officer even though you don't participate even though the bank's board wrote the affidavit saying he had no authority to participate so that's the misreading of that it  petition for review but till the records file they can modify work or change their order ok and that's what we did but it's also it's all within our petition for review because our petition review goes to the credibility of these exams which were fi