when addressing statutes we begin with the understanding that congress says in a statute what it means and means in the statute what it says there when the statutes language is plain the court has an obligation to enforce the statute and not deviate from it and that was the late justice scalia in the supreme court case of hartford underwriter's concerns company it we were here before on a consolidated appeal dealing with the issue of timel had already set in said when a statutory text is clear the sole function of the court is to enforce the plain language of the statute and she also at that time recognize that there was no dispute or any doubt that the citizen under the plain language of teela section sixteen thirty five eight in that they had in fact followed the requirements that they needed to to assert in the first place it's a is in the sense as a case of first impression in the sense that i was unable to fight any case law in which as here a lender was given a pass that they didn't have to comply with a what we want to do so return to your any money or property it gives a mechanism what they need to do and it's a condition that they need to tell the borrower home much dues to all what do you need you know that type of thing there's a procedure here in twenty days they have an obligation to independently look at the tool of disclosures to see if they're accurate and then to make a decision to admit or deny whether or not there should have been two not one correct and then what happens this and then the other part was the inaccuracy is of the finance charges which is a fact intensive analysis in this particular case i'd like to address the fact that there is also and i believe it's fair to not follow the cases binding precedent of bank of america versus peterson in which the very same consul i was with in front of the lower court didn't even so much as mention it in their brief i later found out when i went back to my office and alerted the court so the court was intentionally looked at that case and decided it doesn't apply does it not apply it in this particular case i am of the opinion and there's no way to otherwise reconcile it with the statute the court for whatever reason ignored what this court had found and that's namely that in fact it's in the decision of the affidavit that's what we have here detailed testimonial affidavits of the kiran's coupled with the evidence which is there's three different sources for this these things there's what the cure is got at the closing which is exhibit went to the complaint and then what the title company had their records and then independently what the lender had all three of those sources had only one disclosure statement or as there were two appearance relation which is require two for each borrower it was consistently that way the obvious inference from that is there was only one given and then i'd also like to point out that previously  make of america was before this court and i cite to the testimony that i believe there was a judicial admission that only one was required as to whether it be a backdrop argument or not but that was clearly a misstatement of  walmer it was an abuse of discretion for the lower court to not allow us to rely on that when they came time to argue or cross motions for summary judgment at that point they abandon the argument even on the transcript you'll see that i cite that counsel said well that was our argument before in the alternative that you only need one but we've abandoned that argument for purposes of now so there's no dispute that you need to one for each borrower but to rebut th presumption of receipt which is sixteen thirty five c you need the minimal in this is where the core area you need a low burden a production not persuasion the threshold is does in the language in the statute again going back to statutory interpretation receipt of delivery does no more than create a rebuttal presumption it doesn't shift the burden and once you rebut that or put evidence into the record that shows we have evidence nurseries they made payments for at least a year or two what happened was they realized that the predatory sub prime loan they had with countrywide that they weren't allowed to refinance as they were represented it was twelve point five  percent and as you know countrywide is out of business for a reason so this isn't a normal lawn this is a loner these people this is their home they lived there for two decades and then they go and refinance made a bad deal try to get out of it by doing  only had twenty days under the statutes that shall make a decision one way or the other they were just waiting to see and we believe they purposely way to tell january tenth the following year to do it because if it goes exactly that's exactly right your honor but the loan was it was toxic loans predatory it was from two thousand and six those loans came to light few years later they weren't given i have in my fax section were and unfortunately they didn't keep their evidence but we had a case where they were told by countrywide couple years will refinance it for you and so obviously when you get to a point in your pain that hive interest you just can't get ahead and so they were stuck this is too high we don't get the deal we have by then the loan went to someone else and someone else didn't have the complete files of countrywide so as a huge disadvantage for my clients they were stuck in a quandary and say they looked at this and they had someone independently look at their documentation by the way they did try to modify the loan and ironically the loan modification was granted during this period after they came to us a recession so we're dealing with big banks and that's the other reason  little people these are individuals and again they own this house they raised their children in this house only to have fifteen twenty years later be faced with this woen that didn't comply with morning your honour's may it please the court this case has gotten unnecessarily complicated and i'm afraid i unintentionally contributed to that the last time i was here by arguing the timing on rescission that the supreme court ended up disagreeing with you so let me get to the bottom line here when people borrow money against their house either they have to pay the money back or they lose their house there isn't a third option where they get the money for free  the last time we were here this court conclusively resolved all of the damages claims there aren't any damages claims left the only issue here is rescission and you can't recent unless you can give the money back the karens have never that they can and all the evidence is to the contrary so under this court's holding in f d i c versus hughes as well as the holdings of every other court there can't be a rescission that is a sufficient basis for affirming here without getting into any of the other issues but if the court does get into any of the other issues on violations there isn't an evidence of any violation here and that's another basis for me when other affidavits are some evidence you have to concede that right to show why their prior signature attesting that they got some should not be believed now the quantum of evidence they have to submit is has to be evidence enough that if it's believed it could avoid summary judgment or support a jury so the traditional judgment as a matter although i think you know what my argument is that peterson doesn't say that any conclusory affidavit is enough to rebut it peterson actually you never makes that broad statement nor does any other court the third circuit decision well it's a burden of production the burden of proof stays where it always is i disagree with the other side the burden of proof unity like cases on the plaintiff to prove a violation not the other way but here's what i'm saying just like ashcroft versus it a conclusory allegation in a complaint doesn't count for anything this court has often held in other circumstances that it conclusory affidavit rebutting deposition doesn't create a fact are you familiar with the total in vs cotton case it's an employment discrimination case where the fifth circuit was summarily reversed because they said there was just an affidavit by the plane even an employment discrimination case and that affidavit the circuit said was all there was that wasn't if you were coming in fresh and you hadn't previously signed a form say you got it then you can be pretty bare bones to establish a fact but if you've previously signed a statement saying that you have received you've got to do enough to explain why that previous signature shouldn't be believed and here they don't they have long affidavits but but i want to point out a couple of things that your honour's may have already noticed first of all those affidavits were submitted for the first time in two thousand and fifteen and pause  for that's nine years afterwards and it's in it's five years after this case start that's the first time they came forward with those affidavits they weren't here the previous time around the second thing is that although there are about thirty paragraphs along their word for word identical except for switching out the pronouns it's interesting both mr and mrs cure and claim in their affidavits that they were the ones that secured the forms and kept them the same when obviously it wasn't both of them so if you're and here's what they never do sufficiently they don't explain why it wasn't they signed something before saying the opposite now why their new statements are the ones that should be believed and create a fact dispute the situation like i said is no different from somebody who gives deposition testimony the first time and then doesn't affidavit rebutting it the simple fact of an affidavit later isn't enough to carry the day you've got to say enough to explain why the difference otherwise this means nothing going in signing forms means nothing if all you have to do is just do an affidavit saying i didn't it's like the mailbox rule why is there a mailbox rule that mailing because it's easy to say i didn't get it and if that's enough there's in the fact is skewed every time so that's that's our understanding of what the immaterial it's not a violation i don't have the law on material i should ask you to go to the court i don't think the supreme court has ever addressed that and just to be clear your honor our position on this appeal we aren't arguing about the materiality of the one versus two that's not something that's in dispute so we're and you say it is meant to arial we're assuming for purposes of this appeal that if they have sufficient evidence that they got only one not two that that would be sufficient to trigger a right to ok if they had sufficient evidence to get there and if they met the other requirements so i want to be clear about that so peterson your honor we is is the rule that i've just expressed it came out differently because the facts  different there are super detailed testimony from mrs peterson there that they got no documents and that the lender a month later confessed error and sent them there and then four years later i think the letter says i'm sorry we've lost all copies we don't even have a copy of the mortgage the same and i could keep going i don't think there's a difference in the law in these cases there's just a difference in the facts this case is a close case but i've explained you why i don't think there's enough here to explain why the parsing arches are wrong so you don't get over  o but assume you know so now you know if if there is no violation we're just done but assume though that there was they can establish at least the fact issue on a violation that we would then go down and have a trial on a trial is unnecessary in this case because they can't give the money back they can't tender and the inability to tender isn't in defense pendent least sufficient grounds to deny rescission if you're for a total amount amount of money they've got to give back you know your honor in the course of this proceeding we haven't given a precise dollar amount and i know they talk about the difference between seven hundred thousand and four hundred thousand and the original loan was four hundred four thousand and they've paid approximately five thousand dollars of principal the balance they'd have to tender and be right around four hundred because in a recession you wipe out all the finance charges but it doesn't matter whether it's three hundred or four hundred or two fifty they've shown no ability to tender any of those amounts here in and let me just go through the factual record on this because we've briefed this below this is fully preserved the district court didn't reach it but there's nothing to preclude this court from doing it right now and i just want to be clear on that they have never submitted any evidence of the content of the money and since the last time they made any payment on this loan was in two thousand and eight before barack obama was elected for his first term as president there's really good evidence they can't do it but there's more than that because in their record we have some of the opinions from the state law foreclosure process that has been going in parallel with us and there they move to stay that process in the district court set out grants you state if you can pay a bond which would be about the amount of their mortgage payments they said great we'll move for that stay and do it and then they never paid the bond so a year later the court said no i really mean it if you are going to pay the bond i'm going to dismiss the stay and we're going to go forward in foreclosure and they still didn't pay the bond and that's in the record it's appendix two ninety eight through three o three where the state court of the state law opinions reflect that they couldn't do that they have no evidence here of their ability and we serve discovery on them asking about their ability and they didn't answer it so our discovery requests in here are at appendix one forty and our affidavit showing that in answer improvised recognitions on that point are just open ended discovery in iraq the tories and document requests open ended discovery there isn't a binding admission right now you're right so there's that my point on this is that the burden is on them to prove tender and not only of the not met that burden but there's evidence in the record from foreclosure that they can't and and that's apart from waiver just as ordinary waiver because we brief this up and they gave nothing to the district court so here's rule i heard  trick arguing that just asking in their view means that as long as the lender doesn't respond to the notice of rescission all is waived everything goes away the security interest disappears that's wrong as a matter of law there is no case that holds that you mean as a matter of state law as a matter of federal law ok what federal law bearers on that issue that sounds mean like state law mortgage property rights you know no no it's our normal stuff it's the rescission right under the truth in lending act your honor you know it's under section sixteen thirty five a and b that creates this ordinary process where on to as a matter of the truth in lending act the borrower can send a notice of rescission and then the series of events takes place arguing that's wrong under federal law this court's opinion f d i c versus hughes holds that no the courts can require tender before there's any releasing of the security interests we've cited the other decisions from the other courts of appeals that have held the same thing i think one of the clearest is the yamamoto decision from judge reimer in the ninth circuit on this but let me get back to where i started you know in terms of complications here there are two different ways to affirm here one way is to say they haven't produced sufficient evidence to create a fact issue on whether they got one vs two and we've gone through that the other way is to say put that aside regardless of whether they can they can't rescind unless they can give the money back and there's a complete failure on their part to give any money to evidence they can give the money back but you just can't loan money and then not pay it for eight years and expect you're going to get the money for free and keep your house that's not the way the war works so that's it i your honour's i'm going to answer other questions but i want to briefly touch on two other points one is they have raised an alternative source of violations for the first time in the on remand here and then on appeal they argue that some of the amounts of the financial charges wrong they talk about the property insurance those sort of things that would be you know just to put this in the raises the first summary judgment judge being a judgment for you may remember nobody ever talked about this damages stuff the first time we're here that's because it in brief it it's completely waived in so as to their arguments that the financial you know that the property insurance amount was wrong that there was interest that should have been refunded that there are charges all those are waived this court's decision and cress says if you don't raise it on the first appeal you can't start over on remand it's just gone ok what do you think that paragraph means well let me say i don't think that casts them in doubt because earlier on in the case justice school is very clearly referring to you a conditional right to rescind that's the phrase he uses within three days it's absolute after that it's conditional if you don't meet the condition you don't have the right that's what it was the issue in front of the supreme court in just an asking is what do you have to do to exercise the right and what do you have to do within the three year period the only thing you have to do is send the notice or do you also have to sue supreme court said no all you have to do this and the notice there wasn't any issue in front of it of the court's ability to require tender there wasn't any issue in front of it about what happens to the security interest in avoiding it all of the decisions your honor that have come down since just now ski have held that just does not wipe this out and hold that even invalid rescission notices wipe out a security interest now you circuit court i'm talking about federal courts there hasn't been pennsylvania supreme court right with the other way do i read my notes right that maybe you're right your honor i don't recall here there hasn't been any published circuit court federal circuit court of appeals decision after just a now skiis on this although as are you about a dozen district court opinions i didn't supplement our authority with that because on publishers a ninth circuit unpublished right yes it takes your position that's right but it's unpublished y honour's first of all i'm very troubled by the blatant misstatements of law the burden of proof in teela which is again a consumer remedial statute it remains always with the lender to prove compliance with and this is important once you give the nod to cation that you're going to rescind the statutes very clear under section six hundred thirty five b that the lender then has twenty days in which to look at the documents engage in its own independent investigation and make a decision here they did not do that in fact it would be conditional recession and it's not conditional recession if you look at the very beginning kiran's aren't expecting something for nothing that's that's a good impression to try to make us look in bad light but in the the exercise of recession they were asking what do we need to rescind the lawn they weren't at any point saying they were going to tender the things to say there's no proof of ability to tender first of all it's not a requirement under secondly at all times they were willing to tender the state court case that would issue in a miscommunication between counsel was too high to me and at the time that is not any kind of persuasive evidence in  to say they didn't violate the lead there for they don't have to comply with it i mean what good does it do to have a statute if you just say oh you know you guys you don't have any basis for you just trying to get a pain in your lawn and then afterwards the judge backs into oh yeah there's no violation in the court by the way they argued waiver of the second argument inaccurate disclosures which by the way is in our complaint in the court instead of saying yeah they waived the can't bring it up again right into it and started arguing piece by piece the different issues we raised from the finance charge and he did it wrong because you got to do the sum of all charges and the way we do it with all due respect it's a fact intensive inquiry so that's another fact issue that warrants sending us back but i want to get back to peterson it's just plain wrong to say that the law is as f d i c in all those other cases peterson had his own facts as do all cases but nowhere in that not a burden of proof he's got the wrong burden of proof so he's wrong right there all we need to do is burden a production and then you have a right to go to court correct and in this case it was factually detail and additionally to this the other evidence were not just relying on the affidavits there were other documents provided that short only one disclosure statement whereas there were two nurses cancellation after arguments right we don't have to keep all the copies now