final foreclosure judgment and order of sale was entered prior to the commencement of the trial modification plan now certainly to a degree the statute itself could be read if i were to give my colleague the deference and say that there's a way to look at the statute in their favor one would only have a look at that statute in their favor if they were not familiar with the breath of what regulation x truly stands for what i mean by that is that to understand when the when the statute under forty one ten twenty four point forty one specifically states that the service prohibited to move for a foreclosure judge judgment or order of sale or conduct a foreclosure sale let me ask for your position it would have  well under ten twenty five forty one your honor does specifically require them to take reasonable steps specifically under ten twenty four forty one it requires under subsection g and i will go to that section there we've actually dealt with it  step be taken by the service and and by not doing that which the reason was that here would have been to do something not to do nothing is your honour's example gave as a result of that yes it would have still continued to violate forty one here we have a even further and say that i think that that is a little bit of a misnomer or to use one of the invoke one of the terms used by this court earlier this morning it's a bit of a red herring the reason for that your honor is simply that to see that somehow round created from liability as a result of its name not appearing in the caption of a case then what would this court would essentially be doing is carving out an exception doesn't exist under the law it would because they would be essentially no we would be saying no one could be held responsible under the respectfully i don't believe that that is accurate the what we claim and then you read something that is directly contrary to the most important document but you realize well the supporting documents are relied upon which also i believe if an out mistaken round point itself introduces a final judgment which notes in particular that round that it was the prior service or in fact that was the power of attorney for the plaintiffs in the foreclosure case not plaintiff in the in the appeal or in the district court case but in or correct we didn't because a paragraph twenty nine of our complaint in the district court which stated unequivocally that round round point received from the prior service or its servicing to the documents attached to the complaint as well as the we can see a document one dash three for example where we which would be attached to the complaint we see there that it's the mortgage servicing corporation around points mortgage servic ultimately the essential question that's before this court really is not to do with the servicing transfer whatsoever but all the court based in the district were based its opinion on one specific avenue of this law and that was specifically that have a foreclosure judgment and order of say all back in february sixteen absolutely i do it already before the agreement i'll have deposited just positive motion and got thomason on behalf of around point where he servicing us today but hopefully not least i am here today to talk about the judge's ruling below first of all i do believe  judge bloom's ruling in part was based upon the fact that the plaintiff did not plead a relationship between random and my client round point to implicate round point in the motion that was filed which is central to the lawsuit let me ask you a question just for purposes of this sort of set of questions just assume that we can attribute randoms actions to round point in moving to cancel the sale and reschedul and so their motion sought to to reschedule it at least thirty days later right that's correct ok so since if the loan modification plan was being followed then every month  on one would hope that the judge would set for closure sale out further than thirty days notwithstanding the fact that that was the request and that motion if the court looks back at the previous motions that were filed by random it will have that same language  or for worse that seems to be what happened there ok so so for how long could you under under your theory for how long could round point keep cancelling and rescheduling this sale actually what did happen she completed the temporary them odd the sale was cancelled the mortgage was never foreclosed there was never a sale ok so just to make sure i'm understanding your position is that he could have been cancelled in rescheduled for as long as she was in the temporary loan situation perhaps but hopefully if i were handling the hearing i would have asked the judge which the foreclosure sale out beyond that point but but there is a there is an issue that's part and parcel of that whole analysis and that is at the time that random filed its motion to cancel the foreclosure sale the first payment under the temporary loan was not even do yet so random was at that point in possession  to miss landau within a month or so of the foreclosure sale steps in and moves to four to cancel the sale before the first first payment is overdue let me ask you just as a matter of fact because i don't have a good feel for this when i'm talking about a temporary loan situation before their remodel or before the what it would you call it a modification ok permanent loan modification comes in it's like how long is that period of the temporary modification i believe in this case it was three payments i'm going to actually know what it was six and they were seventeen hundred twenty one dollars and so it was six months and the motion you made was on september twenty the first payment was due on the trial period was from ten one sixteen to three seventeen which i think it's six months and she made the first payme and you didn't ask for another set the sale or anything i know she came in and set canceled the whole thing but you didn't actually what it seems to me how this works is that you just if she makes that first payment october so you cancel that one she made her prime met on october won and you didn't have the reset right now the rest of the payout and if i may your honors that right you didn't move to reset it again it was never there was never another motion that reset the sale ever and well it do you know if it is there regulation or part of the statute that requires that you cancel the sale and  move for further rescheduling after the temporary modification period i do not other than the regulation that we're talking about here today and i believe that you know if there's performance under the model that's another whole factor of consideration in whether one moves forward with requesting the sale date all the cases i have read have dealt with which have dealt with that issue is when the borrowers beginning to flounder and not perform then perhaps moving at that point for the sale date if it's been canceled is is the correct move to do but i do not i mean i will i will tell you what you've said off the top of my head doesn't sound unreasonable but i'm wondering where the source is so in other words and i know i realize this issue isn't before us but just for purposes of conducting this analysis what if we had a situation where he where the there's a temporary loan modification all goes well and then we get into the permanent loan modification all is going well and the servicer keeps cancelling and seeking to reschedule the sense and that judge bloom's analysis was correct but i not take it it's odd here because i don't know this is a question because here are you already had a judgement no order of sale most of these things are dealing with dispositive motions to get that far you away down the road here that's correct and so most cases are part of being way down the road where it's just the say on left where you have this last modification fact this is ari yes you are and it's all part and parcel of the same order the judgment was the order of sale why there was never a new order of sale it was rescheduled but there was never a new judgment if there was also rescheduled it several times and then you get address this it doesn't it and if i may i would like to point the court to official commentary to the two thousand and thirteen amendments to the mortgage servicing rules and it doesn't deal specifically with ten twenty four g twenty four forty one g but it does does deal with ten twenty four forty one b three and its seventy eight federal register sixty three eighty two at sixty three nine a survey i hate to tell you is hard enough to understand this one regulation  that we don't have to look at but anyone well the point is the language deals specifically with rescheduling orders of sale and i believe is germane to this point because the court was can i mean the  comments the bureau notes that structuring the rule such that a borrower is rights may be added or removed because a foreclosure sale was moved or rescheduled would not provide the certainty or simplicity simplicity created by the proposed rule and that's consistent with other official commentary that it's commonplace for services like round point to to push out a foreclosure sale when the moon model is in is in place now you might know i even thought about this you might even not be really willing to that's correct right on october fifth so it really be a disincentive if you can't just kind of put that out yes it from our perspective around point is looking at this is a commonsense way which i think is the way that wounded that they they wanted to keep this landowner home they did the right thing they offered the loan model but yet they still get punished in a degree by this case by the language that we don't think says what the plaintiff leaves it i think we have the loan my that was offered by round point in september sales were canceled so many times the court looked at the reasonable list of whether the language was plain and simple under statutory construction and whether there was even a need to go to the new this legislative intent to see if further meaning needed to be held in the first  r and if you don't find that that regulation x was violated by the fact that point simply moved to reschedule a sale which was really a non issue to begin with you don't even get to the second part of the plaintiff's complaint which is the f t c be a plane i'm not sure that that's even your name joined if the court has any questions or interest in that part of it honour's i'd like to just begin by actually going back to what the chief judge himself said he doesn't want to deal with and the truth matters i want to deal with it because i think it's most important point because he said it's really goes to the fundamental aspect of this case it's not myself that saying that round point moved for foreclosure sale to be reset round point said ron point said in the motion to dismiss round point said it so many times including in their briefs to the extent that your honor judge rosenbaum noted that they said they can reset it time and time again because they admitted that they had done it so to say that we're going to go and engage in an in an exercise of double speak and saying well here we said we did it but here we're not really responsible i think that this court thousand and thirteen which did pass by the way for two thousand and fourteen january tenth the truth of the matter is that b three says it very clearly how we are to determine the protections that are for it to consumers which is why we are here today the protections that are for to consumers and quote shall be made as of the date a complete loss mitigation application is received and i think most of additional consequence that i think is of great importance is when we look at the federal register which was part and parcel of this appeal the federal register says and i quote in a non judicial proceeding when there is no court action we're ten twenty four forty one g applies it addresses only the conduct of a sale and a non existing court proceeding that's dealing with the conduct of a foreclosure sale we can all agree on that because it it says however where the foreclosure process requires court action or court order ten twenty four forty one g by the way that's florida and also the case that my colleague stated which is the fox case is one hundred percent on point because guess what that case is also in a judicial foreclosure state for closure judgments in those states require a sale direct so what is the regulations say it requires to it where  foreclosure process requires court action or court order ten twenty four forty one g it is a political and a server so must comply with the with both the prohibition against moving for a judgment or order of sale and the prohibition against conducting a foreclosure it would be to their incentive not to their detriment to want to offer a modification and cancel the sale at infinitum if necessary or not to reset it and i would state as someone who's been on the ground fighting so to speak for these types of things in broward county as as is indicated by the order itself which is part of the exhibits the court will note that the top is circled under the two thousand and fourteen case because as many times as a round point would want to cancel the sale and reset it as they admitted to doing to address judge carnes point the fact remains that it is up to the foreclosure court not to not to round point whether or not that sale gets counted cancelled so there are many bars as the as the regulation excuse me as the bureau itself as stated in its commentary there are many times that the regulation although passed is not going adhere to so what we're saying to this court today here is that the court absolutely got it wrong to see that regulation x and rest with does not afford  protections for a bar or when a foreclosure sale is had and a modification plan is offered there after that is exactly what happens in every non judicial foreclosure say excuse me in every judicial foreclosures the but getting back to the point th before and the commentary which talks about reasonable steps have to be taken it's i mean in looking through the federal register pages it seems to me and what is being said there is that a reason the post you have to take reasonable steps to prevent the sale and reasonable steps can include rescheduling the sale or staying the say either one of those would be  ok provided that you're taking reasonable steps to prevent the sale so if that's first of all do you agree or disagree with that and second if you do agree with that then what is the problem here since they moved to reschedule the sale your honor there's actually a few points one i agree with that to some extent i would actually more be inclined to agree with judge paul on a point where that he said maybe we would be happy if they would've pushed it out beyond the perform so if that's the case then push it out further there's an additional remedy they could have then come back and said so i think they could have come back and moved to have it reset sooner but i don't so i'm sorry i may i may misunderstand are you saying that had they asked to resign to reschedule the sale for a period after the loan a temporary loan modification period ended and that would have been that would have been permissible under the regulation i would say that there is a  possibility of being able to reschedule it but to ask the court to reset the sale i think again flies in the face of the regulation when the courts asking me if i think that something is reasonable on a personal level short so in as far as the regulation which is what we're limited to i do not believe it is permitted so don't under any circumstances are that's ok just for purposes of understanding your point now you're your position is that the regulation would have allowed round point t reschedule the the sale provided that it sought to do so beyond the temporary loan modification period exact her act no your honor ok that's where i'm misunderstanding so my position is only on a personal level i'm addressing it only as a personal level that i believe your honor correct me please if i misunderstood i understood your honor asking me if i believe that would be a reasonable step to extend it beyond the period of the trial modification perhaps what i mean is reason why would it be a reasonable step under conduct a foreclosure sale it makes that point because in a judicial foreclosure state unlike a non judicial foreclosure state and we said this before the determination of whether or not that's how it gets cancelled isn't up to the service or it isn't up to the ball or it's up to the third party who's an interested and if they like they did on the indicia of the order circle the case number because look at the year because florida supreme court sent down a mandate we got to move these cases along pursuant to the rules of judicial administration  remains that there's a there's a hidden element out there that has another factor that is not being considered that is why the right and the federalist are makes it clear that's why they carved it out there is a carve out for florida and illinois and judicial foreclosure states like them that apply to those two things prior to the third from unlike a non judicial foreclosure state which the federal judge her makes clear they only have to adhere to that one and the defendant i will just say because the defendant mentioned that he has that he could not find any case law and the court seemed to suggest that the reason for that is because well they did it doesn't the regulations don't address that and i would i would posit slightly different the reason why there is not a breath of case although you have the fox case out of illinois which again is a good example close your state is because it's such a basic fundamental principle with that when it statute orders statute commands that no orders of sale shall be moved for that's honor does but i have pages and pages in my binder here i wish your honor were present to be able to see it but nevertheless i have pages and pages of your honor stating that the holdings of a prior decision can reach only as far as the facts and circumstances beyond the court  that and then ugly way is my grandmother would say i just think that that's the way that appellate argument works and don't don't feel bad about being confused about that justice kagan before she became justice kagan made