require that no you are so in this particular we're faced with a preemption question that's correct you know just why doesn't preemption apply it doesn't apply because there is no national banking laws that that has been historically been a state police power but as i understand your your argument though doesn't it require us to interpret the word making of loans to be limited to the issuance of the original loan but not any subsequent modification or refinancing of a loan isn't that your position opposition is that the lo which is clearly covered by the national banking act as an express power of a nationally chartered bank does that include the making of modifications or refinancing of the loan down the road it's just a yes or no answer and then you can explain your answer you know no because you add the word barf occasional refinancing point in a sense is yes it relates to  refinancing but no it does not relate to loan modification the question is does it relate to the making of a loan and i'm having a hard time understanding why i have a bank goes through the underwriting process in determining the risk of making a loan to a worthy borrow or it doesn't also do exactly the same thing when the borrower subsequently comes back and asks for a modification or refinancing  isn't it exactly the same thing to to undertake an assessment of the risk of extending further credit or changing the terms of credit and why isn't that a regulated that that on the first page introduction you attached a letter from the bank to the complaint right yes and all that letter says is we're not going to disclose that information yet doesn't say yes you're correct we denied your modification based on our do plead dead in the complaint you say that the loan modification was denied based on and b v but there's no corresponding factual support there's no allegations of of who did what to make that the nile there was no communication from the bank to you or your client that denial was made on n p v and it's fine for you to allege that but unless you're also to allege hey the real reason for the denial was false and the bank actually denied on  or discovery in such and such a form shows that ebbers i should say factual matters in such and such a form shows that then it's a matter of you simply stating something for which there's no factual support and that is why i understand the judge denied or excuse me dismiss the complaint that's my problem with this with this whole case is it seems like you've just made a bald statement without any on page two thirty nine the introduction at the end plaintiffs contacted defend to ask the calculations and was told defend they did not need to provide any of the calculations use that still doesn't doesn't say that her long modification six plants contacted the council but i want to go back to the question i asked you earlier because if the answer to my question is yeah us that the making or arranging of loans includes the servicing or extending of credit then by definition federal law and the f d i c regulations attach and that would preempt california law which purports to add additional rick it's that the federal regulators have not imposed on national banks so we don't even get to the question of that we're talking about lending provided that does not significant burdens of the lending his activities in this particular case i thought the bank basically pointed us to regulations that say that this sort of internal bank do no your honor actually it does not because what happened california foreclosure statue says notice this is the face we argue the point that there's a distinction between disclosure and notice and because california specifically understood that disclosure involves doing to put the nissho origination of the loan so part process that they want to use the word to distinguish disclosure and this case notice relates to after the fact the loan has been on default but isn't isn't the notice of the determination by the bank that your request for a loan modification is isn't that the notice yes but within that knows under section twenty three point six requires that if that notice is based on the reason why you have to months for an individual to basically collect all the formation they want paystubs they want in common all that's up this basic forty two something factors involved in this after that they go to the underwriter then right takes another six months a year and they really do detail calculation of whether this particular individuals should be entitled to a long modern not about is that now a disclosure or is that a notice that sounds to me like a disclosure requirement not a notice required yes you know but in the guile the court banks show don't give loan modification only occurs when they are the homeowners are in default they have no incentive to do that isn't the underwriting process the same i mean underwriting is just a fancy financing term for assessing risk it's the same thing that insurance companies do in trying to decide whether or not they're going to issue you a policy of insurance and what premium they're going to charge and i don't see how it differs whether you're considering the original loan to this borrower or the borrower comes back two and a half years later and says i need to modify or renegotiate the terms of my long there's the underwriting process is the same is it originated but it's still an underwriting you write in a general sense but there's a more specific sense it's not because here right the underwriting process may be the same but the result is different right in one particular case within the meaning of the federal banking law well from what i understand because the making is the origination of the loan so is doing the initial process when the lenders and the homeowner are in contact and to go show you think that any subsequent amendment or modification indian why isn't the making of a loan limited to simply the origination it would seem logical that when you make a loan you originated in free aided and if you modify i to something different well i think there's i think there's three or four answers to that so let's first look at the the the word that the language itself the word make means to cause to exist to appear  comes from the idea in fact we cited this in our brief the word make actually from its root word came from the idea of a parent legal document and to make a loan modification you are required to   and so you are in essence making a loan you are making an amendment that's number one number two if you look at the general purpose if you look at the purpose of the national bank act in the regulations that are adopted it is clear that the congress intended to regulate the real estate lending activities and its associated activities and you can see that in a couple places one is twelve u s c three seventy one standards for real estate related lending and associated activities loan modification certainly is an associate activity with real estate lending it's done all the time time and then third your honor if you look at the reality of the substance of the transaction counsel for appellant said well what do you do for a loan modification application you submit financial information in an application and it goes through underwriting and then there is some agreement that's reached that's exactly the same process that has gone for a loan origination and as your honor pointed out it's even more riskier once the loan you're going to loan modification because the loan is now a trouble long there's nothing in the statutory history that would suggest which was to have a national bank is deemed an instrument calorie of the federal government it is something that was created right after the civil war so that we'd have national standards for banking and that federal law would control so in terms of making real estate loans i think it's fall it falls squarely within that but i'd like to go to the first the threshold issue that i think that your honour's pointed out to him that we don't even get to the preemption issue so the complaint in paragraph court as you pointed out the denial letter and it's a task is exhibit one paragraph fifteen simply says that the denial was based on a conclusion a bald conclusion that it was denied based on exhibit one which is a seven page letter dated october fifth two thousand and fifteen it sets forth all of the reasons the word net present value that phrase is nowhere to be found in that document it doesn't mention it it doesn't mention n failure but i get the sense that what mr dinh was arguing was that he'll properly that the denial was based on a calculation of an p v and he read language from the complaint that seem to support a position that the bank even though is not in that letter provided that is the reason for that an me take it in pieces for a second first let's to address his contacting that's an paragraph twelve of the complaint paragraph twelve the complaint state october twenty sixth two thousand and fifteen plaintiffs through his counsel's office contacted the defendant to discuss the denial letter plaintiff requested a copy of the n p v calculations in order to decide whether or not to file a formal peale in response to this request defendant stated they didn't do not need to provide any n p v calculations said that they would don't provide it if you look at twenty nine twenty three point six f three conditions disclosure of the monthly gross income and the property value used to calculate the net present value only when the denial of the the first lien loan modification is quote the result of a net present value calculation in this case the net present value calculation is done under the direction of hamp which is a federal program and it requires do it a net present value calculation if you look at the loan modification the denial letter there are two reasons given for the denial of the hamp loan modification one is that u s bank was unable to create an affordable monthly payment amount without altering the virus's account beyond program limitations and to modified principal interest payments would exceed the targeted principal and interest payment per program guidelines but what i want to know is is look she that she was notified that the application had been denied based on an and p v failure that may or may not be true but you can't just go to district court and say that's not true so dismiss the  complaint you have to say we're going to discover facts that indicate it's not true and move for summary judgment under rule fifty six right your honor is there there is ample case law that says that you can't have a ball conclusion that contradicts documents a all right ok ok so you're relying on the letter paragraph let me absence of the n p v analysis in the letter well this statement a juror referring to is paragraph eleven that specifically says it was that they receive notification and this is a true and correct copy of that letter is attached as exhibit one right so it's basing that statement on the letter so that the bald allegation contradicts the fact and he doesn't say the bank  officers agents in employees spoke with each other in misled the lender in the letter or anything like that exactly there's nothing there and so he stuck with the complaint as pled let's talk about this notice disclosure difference for a second that he raised during his oral argument and he relies upon while and tries to cut this distinction between notice and disclosure and i think i would analogize notice in disclosure somewhat like peanut butter and jelly and they go together and you can have notice and disclosure so specifically the calculations used in the net present value is it is basically the why it is the disclosure and so if you look at the definition of disclosure that acquire used it's as the act of disclosing or exposing something that had been kept secret black laws dictionary defines disclosures the act or process of making known something that was previously unknown a revelation of facts here the revelation of the fact is the calculations used for the net present value it's not something that that appellant would have known or could have known it's something that us bank had under its underwriting process the notice is a  is a notification or communication of a fact claim demand or proceeding so again the notice is being sent but it contains a disclosure now of while there is a the court said well in that case it was a notice it wasn't a disclosure and i want to make something perfectly clear on why or why oh it's not this case a glial had to do with a u c seen a notice notification of disposition under the uniform commercial code and that is purely a notice it's a statutory notice under u c c nine six one three in fact if you look at if the if your honour's pulled the u c c there's actually a form notification that sent out and it simply gives you the date of the foreclosure sale that type of thing and inquire oh they knew that the car had been repossessed it was a fact they didn't know they've been repossessed all they were given was the date of the foreclosure sale that was the notice it that is completely different than disclosures of underwriting variables or underwriting processes that this net present value calculation requires so it clearly falls within the scope of of of  that of disclosure and under as under thirty four point four a nine disclosure falls within the it is something that specifically preempted but if we look beyond thirty four thirty four point four a nine i think your honour's we can go even a step further because if we look at the statute it says a national bank may make real stay loans under twelve u s c three seventy one and thirty four point three without regard to state law limitations concerning and the nine says disclosure but there's another clause that goes on after that i think it's also the applicable it says including laws requiring specific statements information or other content to be included in credit related documents i'm paraphrasing this is a credit related document they're asking for the decision to make a loan modification is a credit based decision as as we discussed you submit taxes you submit assets and liabilities and financial from ation and the calculation itself that the underwriting is doing is by definition a credit based decision because the net present value what that calculation says is an analysis of whether the better the bank is better off in foreclosing or is a better off doing a loan modification that's what that calculation is that the purpose of that calculation what's the remedy then some evidence that the bank lied about the reason for the denial well they have appellate rights under the no no i'm not talking about here i'm tired about just any anyone who encounters a situation i mean you have to go to shut out a federal court or you know well if you're lying if you're the bank if using the word lying i mean that that's a conspiring lying to most leading you know banks are subject to generally applicable laws and so there's there's that important to get through but but my question is obviously how does a dissatisfied bar we're getting into federal court to to remedy rights for denial of a modification when the reason that she was given ford is at odds with what she understands to be the truth well not to educate my posing counsel on claims but there are federal statutes that provide remedies they can assert themselves under i for the court wants me to go through them i can but there are specific federal statutes that they can avail themselves of they govern national banks and they can assert federal remedies are done all the time that's not what we have here he sued under a state a state court claim well that that's my question because it seems to me that a broad rule is what we need here we need to look at what happened  twenty four congress intended to a new to give banks national banks powers and incidental powers numerated powers an incident powers and certainly the making of real estate loans under section three seventy one the making of real estate loans which by the way three seventy one just doesn't limit to making it its is arranging and cetera et cetera on real estate loans and that's what this case falls with this is something that falls within the ambient of the federal government thank you points first of all if we were not to distinguish between full closure and notice that would affect all of california notice of default a notice of trustee sale so if you are two i thought the question was not  of sales if so is it your position that california law requires the bank to disclose all of the details of its underwriting you know assessing the credit first of all it's not disclosed in a sense because i don't want to keep using that word because that is an issue here the second point let me answer the question without using the word then is it your position that california law requires the bank to reveal all but no because what happened they give you for example in the nine eleven they say oh your income was insufficient but then it gives you the reason with the income that was jews we don't have no value in the katyn why the income was insufficient what income was use what can i know that's not your client provide this credit information to the bank with the loan modification including what their current employment was and how much money they were being paid every month just just tell me about what happened is the records get still after sixty days so you have to keep refiling you pay stubs you income and all that stuff so in that particular sense we don't know which income the lenders was using so that's why we ask for those stuff and we need more pissed more specific details so we know whether to appeal are not in this case we were unable to because they didn't give us the formations ok i think we have your argument in mind and you have run out of time so and of course you're forty forty three forty four forty five seconds over now