community bank versus northern virginia it pleased court jury heart soul of the wake county north carolina bar i appear on behalf of the appellant's and case thirty eight fifty seven they are referred to in our papers and have frequently been referred to as the north carolina appellants and this is your the group that there was an argument that there should have been created a subclass here we contended there should have been created a subclass but more importantly your honor which challenge the adequacy of the class representatives because they had no one who possessed the north carolina bar which claims now this court sends the case back to a judge lancaster which is what you're  asking it looks to me from reading its opinion as it relates to the motion interview and as it relates to the viability want judge lancaster to do if the case is sent back to well first off your honor the case that we filed in two thousand and one did not assert any teela or hope of coins we have a case pending in north carolina it was argued front of the north carolina supreme court on february fifteenth of this year that is the case that judge lancaster remanded we are frankly are on are somewhat indifferent what the court does in terms of the remain and because it is our intent if the court disapproves of the settlement this approves the class to proceed in north carolina we've had in the judith cation on behalf of the two named point if the court sees fit to disapprove of the settlement we would seek to get that case certified and to proceed in north carolina where you say that the two thousand and one complaint did raise the the hope of claims but  still argue in favor of relation back to two thousand and one i know we're talking about slightly different things but it is not your position no your honor we're talking about very different things mr walters is the  you want to preserve your claims in the in the unrelated action right now is correct your honor the action that has been remanded i understand now there's been a great deal of confusion about the interest ship or lack of in a relationship between the north carolina borrowers appeal and the other appeals but we believe that under this court's decision in two thousand and five when it directed the district court to pay particular attention to look opa or other claims not asserted by class counsel that that other claims was big enough to embrace us and if you look at the brief that we filed our opening brief at pages nine and ten you see the references to the locations of the record at which we raised an adequacy challenge adequacy because the class reps the persons who were approved of class representatives did not have any claims under north carolina law and therefore could not argue for the widget i'm a city of our trouble damages award that we got a judgment on of worth about twelve thousand dollars so your argument predominantly adequacy our argument is essentially exclusively at was i mean we have a tag on argument that he should not have been joined the prosecution of the case in north carolina we have a tag  argument saying well the son of an amount wasn't enough but for all intents and purposes our argument is adequacy and this is what the district court said when he was dealing with the adequacy challenge two sentences if i may read there are no absent class members with quote viable feel of hope of claims for the named representatives to protect as this was the only basis for any challenge to the adequacy of point of we find that they are adequate representatives this is joint consolidated appendix page one of five when those are sued initially filed september thirteenth two thousand and one and so we we had at the two thousand and five decision of our court you did that because on that panel the you for raise the supposed that unique features of north carolina law subsequent to that two thousand and five opinion is that correct your honor how can is a little late to say that somebody is not an adequate representative of the class once upon a time the defense of the settling parties argued that position they have abandoned the we interpreted this court's two thousand and five opinion as broad enough to permit our challenge and we set out the reasons in our brief that the language of that opinion this efficiently brought in addition we believe the law generally permits a party to come in and take the advantage take advantage of an appellate court ruling and we cite the law as to that matter indeed we thought our arguments were sufficiently persuasive when they were advanced below that it was for that reason that myself the seven minutes we contend the district court's ruling has the following failings when it comes to the north carolina bars it did not acknowledge or adequacy challenge it did not acknowledge that our challenge was supported by the north carolina attorney general it did not acknowledge that we had no statute of limitations issue even though it went to great lengths to address the statute of limitations issue it did not acknowledge that we had no preemption issue the district court itself held that there was no preemption issue when it remanded our case since the preemption defense and complete preemption standard is the same and finally it did not good afternoon fred walters of the half of the missouri illinois objectors the george allen man jack tours and the maryland objectors for the courts information other council who fi separate risi alabama georgia objectors as well as american objectors are here and are available should the court have any questions specifically of them we're here for the same reasons that we were here in two thousand and five that is the class representatives and the you're saying are not inadequate representative who are not adequate representatives of the group that's correct your honor we have the same issue now that we did then and when this case was remanded by judge florida in two thousand and five there were specific directions given to the district court which we have we filed along brief about the failings of the district court to follow this this might jump to mr hartsell with an inept question that i should have directed to you and let me direct it to you what what would you mechanism that is correct are good all right leo you go back there's an intervention there's twelve emotions filed what's what's judge lancaster duty and before well first of all the findings that he made t construct which wasn't appropriate the legal conclusions that he reached in this particular case are rony us with respect to relation back with respect to class action tolling so one thing the court has to do it seems to me is direct judge lancaster the appropriate complaint perhaps for a relation back is that correct well that's the first thing that's correct the november tenth two thousand and three complaint which he was using for that's just far back in his mind per his opinion that any of the claims could reach and even if even if amended now if the davis and little rick cases that i need to i need to explain that this case was indeed yelled once there's a name d l the typical procedure is that when you file an amended complaint the amended complaint typically runs across all the cases in the m t l that never happened in this case is a court also have to make a determination regarding  of rescission and particular whether that can be equitably told well that's one of the decisions but there are rescission claims that don't require equitable tolling there are some portion of the class and that's that's why the current representatives are inadequate none of the current represented these are entitled to assert those hopeful rescission claims that are not subject or do not need if you will equitable tolling but that issue you asked will run across some of the other members of the ultimately be determined but it's too early at the classification stage to reach those kind of decisions that's the merits of solution that should have been reached at this particular point in the in the progress of this particular case maybe a merits decision but it seemed to me that judge lancaster said these are hopeless claims under any set of circumstances because of in some cases the legal bars or the complaint that was being used for relation back  hard to avoid some merits analysis isn't that when you when you reconsider no i don't think it is judge i think what you do is you appoint adequate representatives that can represent those particular people who don't have the conflicts that now exist in the class nobody spoke for those people who don't need the equitable polling who don't need a relation back if you will mean all those people are unrepresented now at some point in time that will be that will be the result you're quite correct so when we if you go back there one of the things that can happen or should happen we believe this is the current case there should be an amended class action complaint that governs all the cases and in that amended complaint and we filed one in the hobson case which was filed in alabama and then m t l that to judge lang castors court we filed that after this opinion first came down here but it was it's never been ruled we asserted in that claim in fact we asserted from the beginning in the alabama case the hobson case it's called in the pleadings here mostly the hope of claims that once this case was sent back in two thousand and five there was no class thing would probably be to appoint some classes for the members that have that yes that would be correct there would be subclasses that need to be appointed but the interests of those who have differing interests are structurally pernick protected through either subclasses or separate counsel that would be correct yes and no nominee with respect to your motion timely yes there's no doubt about that you know but you waited until several years after became apparent that the district  was not going to consolidate hopes of you know what we did we we filed the initial we filed the initial intervention motion in october of zero three and we have sought to intervene before the first settlement that came to this court but then you sort of what it remain dormant that you know we let it remain dormant and actually that was one of the issues that was up here on appeal when judge clover wrote the opinion in two thousand and five and she indicated that that point in time that that that that motion was was  had been timely filed at least at that point time the motion to intervene so the case gets sent back in in august or september there was a an amendment to the opinion in september september of two thousand and five that goes back to judge lang castor we meet with judge lancaster and i think it's october november of two thousand and five and by that point in time the alabama case that we had filed in two thousand and four it had been in me in the old after just blank every court of the hot thing case was pending there and now we had an contained six or seven or eight cases i forgot how many exactly it was so we sat down at this conference in october november of two thousand and five and judge lang castor says or asked well what about the the motion intervene what that participate fully when you're not in the proceedings post two thousand and one we were allowed to work for you but you were allowed to participate actively in the proceedings we were as the object as we were all of the objectors were allowed to participate in the and then you renewed your motion which i called dormant motion to intervene only when the court's decision ultimately didn't go your way seems like well we were actually we were nude our motion just before at the point in time when us to renew our most at that point in time because we did not know who was going to be appointed class counsel there was no class counsel appointed that point in time and if you read those cases it says that really until there's a class that he would rule that you have a hope of claims would that the absolute time limit for the motion intervene would have been the end of the opt out period would have been the end of the opt out period for the settlement you're now considering in our motion was filed arce our renewed motion to intervene as as jango as described it was filed even before the cap the class was preliminarily or conditionally certified with respect to the settlement we're now here about it that if you look at the record so not only were we timely given how judge slover described it the timing as to when you're supposed your motion to intervene we were long before there was even a classified so that we knew our our our client's risk if you will the class could be put at risk and i believe we are absolutely timely with respect to the filing of the intervention motion under the  she wants she wants your see when well if we substitute plaintiffs yes and first of all let me make clear that we with respect to substitution of plaintiffs we don't believe that's an issue here at all we believe plaintiffs  also the court in each of those instances said class action tolling say those has told the statute of limitations so even though were those individuals a new class reps to be a commish their own  when they file and intervene either substitute or intervene their actions are acts absolutely timely and they can be substituted based upon class action tolling under american pie and crown court so we don't believe substitute in and then once they are substituted in their their their claims roll eight mack the same as if they were the original plaintiffs and given these cases were bundled together and were consolidated any time there would have been an amendment if there'd been a just which is what the should have been a m d o wide class action amendment that amendment would have related back to each of those cases each of the cases that were bundled together in kessler and i think there were six consolidated there the two that are most important here are the davis case and the rich a class wide amendment or a n b l m m a that applied all those cases were related back down the pipeline to each of those back to the very beginning that was what and still happened with three mandan intervention that's what can still happen another well another alternative is we have the hobson case class action tolling with respect to the hops in case also protects those same dates are protected with respect to hobson because of american pike so now what's the date you would relate back to well that's one of the facts is disputed if you read judge slobbers opinion first opinion i think she assumed without much discussion that it would go all the way back to the beginning and davis that's a disputed fact that  this and i know i'm right in general i would agree with you and the issue with respect to how far it relates back is if one the davis case the initial davis case was filed in pennsylvania and it was only a pennsylvania class it was then amended the davis case was amended and added a national class and that was a little later date so the question is we now have a national plasters the national class if amended now relate back to the very first one is only a pennsylvania class or to the later today have a little bit of air i'm sorry if we send it back to judge lancaster without some guidance and some clarification particularly in light of what may be confusing in the court's first opinion if we don't do that aren't you as to what particular complaint should be use that it relates back to now we believe there should be related back in the davis case to the initial one and the reason we say that judge and we're aware of the law that says when you expand the class of the national classes should only go back to that we've seen that case but in this particular case we have an unusual circumstance where these defendants agreed when when jurisdiction was obtained in the fall of two thousand and three they agreed that it could relate back to the beginning that was part of the and that's part of the situation it's a bit unusual about this so although the typical thought would be only relates back to when it was a national clash of the day that we will plea believe here that it should relate back to when davis was first file given the agreement and consent of the defendants in this case when the first settlement and in the fall of two thousand and three was was engineered and finally approved so but yes we do believe there should be some guidance in that respect or anything that can save you if the two thousand and three complaint is the operative one real estate settlement there are several documents the documents the hope documents in which the misrepresentation were used to do that once once upon a time so i understand what the documents are that there is out there is a hope of disclosure the hope of disclosure which mr describes the a are is the operative document where the fraud was operated on our clients now there were additional documents that aren't from that that are not part of the fraud if you will that would one of those would be the the  one and there's a case in georgia that says the hud one when they listed one they disarmed our client on the one because they list on the hundred one the settlement charges one is for a title charge that was never performed for typically four hundred fifty times your view is that  as of the day of settlement when presumptively you'd have a hug warm that the the bar would say that's when the equitable tolling commences that's correct at that point in time they have they have concealed from us and affirmatively through the hud on conceal from our clients information that would have helped them discover what the fraud was that had been practiced upon them with respect to the  have revealed it it was not it absolutely was not discoverable by looking at the documents that the that the borrowers had there were other documents for instance there's what's called the property report one of the markup reports is one of the fraudulent acts that rip property report that was marked up improperly and as part of the rest of the plan that they're talking about that the class council does the only one they pursue that property report that showed the mark up was never provided to the borrowers and i never saw which would have shown the true amount paid if that's active concealment record that's ongoing until it's discovered at a later point in time and in effect that obliterates it seems to me the statute of limitations once you create the fraud in this case i don't know in this part we do in this particular case i guess i have three minutes left is that i'm i i'd like to reserve a little time for good did you reserve some time i did eight minutes ok well well we'll give you the other we'll give you three more of your minutes you have three minutes left we'll  thank you very much mr walters carson founder what i believe now more than ever and always have believed is a pretty darn good settlement having been around the last time we spent quite a bit of filing date is that of the consolidated amended complaint which is november of zero three but the latest on the class members alone could have closed was march of zero two and if so no class members claim could have been timely under the law or open why would we have spent so much time on that if all the claims runtime your honor respectfully i think that the whole the objectors had represented that fact the first time up one review and i think that the court took that statement and ultimately concluded you know if that's true and there's not really sufficient evidence in the record from the courts perspective to determine whether it is or not then there is the potential that class council was not adequate here by asserting those claims and there's also the potential that there's an intricate last conflict in that these name the class or the statue of limitations so the question here is if we're asking you to go back and take a look at them you know first of all you need to find a date and i don't think we prescribe any that there's one point that all of the stakeholders agree upon and that is on average there's a complete amount at issue want to pearland basis in calculated by single damages of approximately forty seven hundred dollars per line and these were second mortgage loans which had in the original principal balance of about thirty five thousand dollars approximately the debate here has always been about what legal theory do you use to best attempt to recover as much of that money as possible now we alternately have negotiated a modified settlement on remained where we obtained an amount whereby class members would be eligible to receive between eight hundred fifty some dollars and four hundred some dollars per loan which represents between eighteen point five and twenty five percent of the amount of single actual damages in dispute the objectors who now invoke the reason you didn't assert them was what the primary there were multiple reasons as the judge when castor suggested in his opinion there's a limitations issue in all these are data but then also limitations issues on the rest of the claims to there were there were issues but we felt that the tolling argument was what much better with respect to the rest but claims that it was the two look claims because i'm like particular claims there was active misleading in the hard won with there not automatic strict liability the images as these objectors have always contended but you would think if you looked at this i mean from the beginning and you are trying to construct a a class action complaint here you would you would think that you would bring in respa and hope all together and you didn't and they're saying that the lead plaintiffs here really don't represent the full is required to make reasonable informed decisions that that's sort of the the nub of it they're saying you're not an adequate representative of the class they're suggesting that i'm and i'm suggesting that the record amply demonstrates that that is correct conclusion four hundred fifteen dollars and single damages that are attributable to this deal hope a claim are encompassed by the damages that we were captured by way of our proposed settlement to get to the fifty thousand dollars per line that they suggest or obtainable want to strict liability basis they are dependent upon an exercise of judicial discretion which we do not think could reasonably have occurred here particularly when the judge has concluded that these claims are not  imminent you're lose a bit the there are rest for claims brought that are too late but you're arguing equitable poling there are team and hope of claims not brought and to some extent the court goes here are the entire factual they're chasing the same pot but their point is you would get a more greater proportion of that pot if you would have gone after them we don't think that's true and notwithstanding the fact being strict liability damages are in fact entirely discretionary let me ask you about that point the easy answer judge ambrose question you said it was not strict liability but it is is that it's you're talking about the damages may  violations of you could have different measures of damages but that's not uncommon is it in a in a class action why why it's not it's not a question of there being differences which man argument because in fact you are not entitled to the automatic exemplary damages for that claiming that the objectors content i understand that but but implicit in the settlement it seems to me is the judge lancaster found the deal in the hope of claims are not viable so i don't know how much of the settlement you can really say was attributable to the non existent claims at least from his standpoint well we negotiated the modification before he would on the issue of viability and we did that because of the young certainty that had been engendered by this court's remey and decision i think that there was there was risk in uncertainty from the defendant perspective and we were opportunistic and we got more  money but that the notion that these two hope acclaims are with this automatic amount which is exponentially larger than the single damages which are at issue is a myth it's always been a man their own  hope acclaims and what we're doing as class counsel is we're evaluating risks and we're trying to make the best for teaching decisions that we can to recover the most amount of money that we can and we fink that the record wasn't part of it they're saying is from from the get go you should have you should have done it you didn't and therefore you're not an well you're not an adequate class representative because there are people there with his claims why don't we you're leaping us i guess to not have those claims that correct or they did nobody and hope there's an important distinction between the rest the claims and that the look claims if you look at the hard one which is the operative document in the womb materials here there is a misrepresentation with respect to the identity of the recipient of the origination fees and we know that because while the hard ones indicate that the banks that were participants in these loans were receiving ten points approximately on every line if these are publicly traded entities so if you look at the at the ten cases that were filed with yes you see you see a different story being told and in fact the banks were only between in two points and in the the bulk of that money was being paid to these on identified mortgage brokerage is so that is active concealment that will that will support potentially an equitable toing argument by way of contrast with respect to the  identification of the participants in the transaction their argument is that there's a market because there's no debate about the fact that services are being performed on at issue with respect to the hope of claims or title services there's no debate about the fact that title services are being performed in burtons in identification what they were saying is that you weren't really getting a full title you know what you can what an internal report as opposed to somebody else giving you what would be the under basis for the basis for time assurance the document that you're supposed to receive visit as a consumer in a in a more in a residential mortgage loan transaction is the one that the document the money i think that the claim is that the services which were provided were not bona fide and reasonable one therefore not properly excludable from the finance george and that hence there's an that's one data point with respect to the steel hope acclaims which had many other infirmities number one they don't have the strict liability damages that have always been represented to occur exist with respect to reasonable and to do that you have to go into to each geographic market and you have to look at what the pricing is in that market because what we do know is we know that services were performed in exchange for those fees so you in we talk about this in our in our brief there has to my knowledge never been a class certified on a national basis asserting this claim from our perspective it classed as class counsel that was a very significant factor that inclination with the fact that these damages were this discretionary those were the two primary reasons that we feel that we seized upon when we did assert those claims because we felt that the rest the claims were much more compelling and we felt that our credibility was at issue frankly my time is expired thank you very much carolina issues so i'm directing the court's attention back to the issues raised by mr hart's off the record is so voluminous here i guess the question in north carolina is you what if they if there is unique north carolina law that allows claims to exist longer would that be an appropriate subclass there's no there's no unique north carolina law your honor the north carolina claim is this after mr hartsell clients asked for their claims to be transferred to judge lancaster prior to this court's earlier decision upon re man they went back to judge lancaster and everything but i said very straightforward misrepresentation claim and that's what we'll take back to the court in north carolina judge lancaster said well if that's what you're going to do then there's no usury there's no complete preemption i have no jurisdiction over you and he  zero eight the court granted the motion to remain and back to north carolina is that correct correct and then what two months later it enjoins anything going forward and that no it enjoying the class class certification going forward well when judge lancaster remained did these two individuals going back to north carolina i don't think he expected that those individuals would promptly set about to interfere with the class settlement that was not part of what contains as it was that was the argument is that the act that yes yes yes yes yes your honor and there was a miss i taken in but the brief about to the particular site but it is that it is a consumer protection act in north carolina but it's not unique what mr hartsell says is unique about this is and treble damages this about right this is the trouble damages your honor there are there are there are in a way of statutes both federal and state including russia including including a number of states unfair trade practices law that contains trouble damages so that's not what is unique about what what we're here on what's unique in the north carolina objectors view but i have to get out this point that troubling in the statute and that's natural imitations and that statute that was in place back when this court had its earlier had the earlier decision at that time mr hart so advised his clients and this is in the record at j twelve thirty advises clients that the it was a good settlement and that's before the settlement was enhanced he advised his client and at that time the north carolina statute had traveling and at that time the north carolina statute had whatever statute limitations  changed there's only one thing that changed and that is that these two individuals went back to state court in north carolina and on a straightforward misrepresentation claim presented by themselves individually they got a judgment now there is nothing in the history of class action litigation that says that when people who prosecute individual claims get an individual judgment the folks at north carolina are still with the exception i guess of bumpers who opted out there is still a member of the class right yes everybody in north carolina's member the class because no one opted out except barbers bumpers so if they remain members of the class and there are possibly additional things that they have always have state war theories that could have been set forth that it may even be set forth judson rick is prudential decision was a good example of one in which there were potentially numerous different state law claims but the but that didn't mean that there had to be a state representative from each state and the end there is nothing unique about north carolina other than other than the fact that these individuals did obtain a judgment but as judge  in the preventable case that when talking about factors beyond the gershom factors that there are cases out there in which you have class actions and then you have single actions going on out there and maybe after some period of time the after body develops then you look at those as data points and see well there's been twenty individual trials and so we can see a trend and how does that impact on classification that's a data point that doesn't mean that just because an individual takes a case it could be to a small claims court somewhere in some state and sit and get a higher judgment than you could but perhaps get as a class member in a settlement that does not mean that that  that may thank you very much thank you your honour's  that afternoon my name is tom allen and i represent residential funding company which is one of the settling parties and was sued as in its capacity as a purchaser of the class members  going to address some of the statute of limitation issues that have come up in the course of the argument but at the outset i want to focus on one thing mr walter said at the beginning of his argument that we are really addressing here the same issue that we addressed in two thousand five that being the issue of adequacy of representation in connection with the district court's approval of a judgment approving a class action settlement but there's a very big difference where i thought your situation relation back private you have it what is your argument with respect relation back under relation back issue your honor our position is first of all it just doesn't fit there was no amended complain that was filed with respect to the operative complaint that's that's at issue here and relation back is a doctrine that applies once and a once a pleading is amended then the question was what provision of fifteen objectors are positing is that some other person will be added to the complaint as a class representative because your honor keep in mind the reason we went down this whole road of adequacy is because the name plaintiffs  are not in a position to assert teil hope of claims and the notion that a court of appeals set out before i was that there could be some people within the class who would be in a better position to assert these claims  actually are significant differences between the title hopeful claims and the rest of claims that they arise out of the same transaction or maybe you are right how do you know there's danger arise out of the same lending transaction but there are different elements that are involved in proving them understood but i'm talking about the generic same transaction alone clothes alone cannot they they if they arise out of the same transaction but there are very different facts that are involved in  have laid this out that the only way they can do it is by getting a new person to come in not the existing plaintiffs don't have tyler hope acclaims because they are barred by the statute of limitations and maybe we end up back with mr walters main claim that the lead plaintiffs weren't adequate representatives well i think that mr carlson has very adequately responded to that with respect to his little strategy that he adopted and the reasons he made the decisions he more and that'll be it and then that's sort of plays into the argument his argument that i'm not making any guess persians here but his argument that there was some collusion here your honor there absolutely was not and i'm not going on here i'm not making that but the point is if it starts putting some smoke to something that he says ultimately leads to a fire and he thought well your honor the and i do want to respond to the collusion allegations because the kissinger quoting chairman mao quoting confucius the perception of reality is more important in reality itself and this might give the perception that that something's going on because it it's sitting in date of november of zero three with respect to the consolidated amended complaint when in fact you could have gone back to zero two well your honor with respect to the district court choosing the november two thousand and three date i believe as judge jones mention the tell you we may have screwed up the the the point is with respect to judge lancaster's decision and using that day is that is does not require any kind of  revisiting because there's lancaster went on to consider the other arguments that the objectors were making the judge like mr went on to consider the relation back issue while you can intervention pardon me what would an intervention have  intervention motion shortly after forget about that so you have an intervention motion judge lancaster denies it suppose he had granted it wouldn't that have allowed for a full and fair consideration if it had been granted title claims were fully and fairly considered although we focused on the statue of limitations argue and here appellate say not there was but there was extensive briefing and that is all in the record your honor the construct that was created by judge lancaster abs intervention is that correct well the the contract was set was it was a procedure that the objectors agreed to and that we there were very first some briefs filed the objectors literally as the court knows in the record there are hundreds of pages thousands of pages of briefs and exhibits that address not only the statue of limitations issue but a number of other issues that and addressing the factual basis for the t claims and and it and a number of other issues so those were fully and fairly considered on on remand one particular issue i do want to respond to that mr walker said  said the defendants i believe you said the defendants are the settling parties agreeing that the consolidated amended complaint in the kesler case could relate back we never agreed that that complaint would relate back to believe m referring to the subject matter jurisdiction issue that was addressed the previous last time around there wasn't a there was an amended complaint that was filed to assert a federal claim in that at that particular docket number but there was no agreement that that would relate back with respect to any of the other any any of the any of the other cases thank you between two thousand and three and later the answer is this court's opinion in two thousand and five from december of two thousand and five forward we consistently said north carolina subclass north carolina unique value secondly may's statement concerning an alleged mr representation to judge lancaster no such representation was made i challenge him to find it in the record the usury claims that were initially advanced by the north carolina bar works were stripped out of that case in april of two thousand and three while the case was with the state court finally in response to the question what's different about north carolina several things for your statute of limitations mandatory treble damages and possibly most significantly addressed prudence those develop such so that in this case in the bumpers case we were actually awarded trouble damages no need to show reliance no need to show the other things that sometimes cause unfair trade practices claims to be unsuccessful thank you  back to with respect to the strict liability question that was asked judge slowed or referred to these actions as strict liability actions and that they were they did in cup a strict liability and in my community bank opinion case it says that section sixteen thirty five which are the rescission damages and i quote provides the rescission remedy independently explicitly and in addition to civil damages under section sixteen forty no continue similarly damages for the violation of section sixteen thirty nine that's hoka are defined independently and explicitly in section sixteen forty itself so those damages are added to that is the hope of the sixteen thirty five rescission remedy is additive to the damages the statutory damages in the valleys case dealt with actual damages and a statute what's called the statutory or enhanced damages under the statute the statutory damages under the whole perimeter are what we are seeking about and those are mandatory they are divine they are defined and they come as a matter of course as with respect to the rescission damages actually the rescission damages given the posture of this case are identical that is you get the sixteen thirty five says you get what fees you paid and in the payments you've made on your lo you get back with respect to the tender obligations or one of the one of the items that they have talked about here is they have suggested one of the things they've suggested in the court in your choir but i'll talk about it we speak about it in our brief is  claim for damages in this case is the borrowers would get back the interest they have paid and the fees that were paid for there are no independent issues with respect to the rescission damage claim that might be independent or individual in the sense that you might normally think about