pay the wells fargo mortgage on the marital home in which miss gilbert and their two children were residing miss gilbert in contact with wells fargo was told that she was prequalified based on  income that she reported to the m from her employment in child support to get a permanent loan modification if only she would make a trial payment for the first month s documentation that confirmed her income that she had reported to wells fargo and that they had determined to be pre qualifying followed by two more t documents were sent to ms gilbert she filled them out she submitted them they were timely the documents provided that time was of the essence and it was very time sensitive because this was a respond to her submission of documents up to thirty days after they were received march first was to deadline for the documents to be presented and that's when that they were all presented by that day so that meant wells fargo had until the end of the month to let her know you need to send more documents or for whatever reason some justification for denying  or telling her your proof for the loan subject to your next two payments in this case instead of doing that wells fargo why did until all three payments were made and fact it was may eighteenth before they purported to deny her on the basis of not supplying additional documents that they had requested of her the record shows and wells fargo was unable to produce any letter or any notice informing this gilbert that her documentation was deficient or informing her what else she needed to submit and they just did not her without having informed her if that was the case to her documentation acknowledged that she was told she needed to prod provide proof of these payments in the trial period payment contract it says what you're supposed to provide  proof of child support and she didn't provide it because she didn't get i mean it's not her fault she didn't get it i mean if the this is the whole tragedy this case well judge certain what what the court it was is that she didn't receive child support after march first and she didn't prove the receipt of child support after march first our position is that is irrelevant because all of her proof had to be presented by march first she couldn't prove make sure i'm following that's the showing that she was receiving eight hundred forty five dollars in child support and the court order was not going to show she was getting the money the court order was going to show she was supposed to get the money no sir if you look at the order she submitted it dispersed child support to heart in that order for that time period before march first so it was to prove both that she received it the court ordered it and she was in town to it in the future just out of curiosity or three of the cases for get the proof she really did get all the money nothing at all the payments i'm not saying forget the proof i'm saying and of course the trial court overlooked the prove that she did receive child support so i'm still asking norrish did she did he make all the payments he was supposed to make mr gilbert did not support his wife and children as the court ordered him to did he pay before march first yes ma'am that was the money that was dispersed in the court order that miss gilbert provided to wells fargo so the court order says that mr gilbert provided the child support prior to merge first that was due before a merge first the court was holding that money it was so the court dispersed to yes ok yes no then so the crux of this case which i'm only now understanding is what was he required to show after march first because you're saying for the for before march first she showed everything she needed to show for it i don't think she needed to show anything after march first because that was the deadline to either put up or shut up here's here's the money that i'm receiving and here's the proof that i've received when you go when you can make a lonesome where you don't have to report to your mortgage company six months later what your income is or where he received a salary i mean once you once you have a typical loan situation it wasn't a typical loan but it was a loan it was a moffat a modified loan judge and it did not contain any terms that you have to report month after month after month that you're still receiving child support she was already pre qualified she gave them the documents that didn't give her the loan and had protection that are your honor that an appeal bond is a jewish fictional requirement i believe the trial court was correct in finding that her jurisdiction was derivative from the state court in tennessee law is very clear that when an appeal bond is filed if there's if there is if it's faulty the court never acquires jurisdiction i'm a little skeptical of this whole derivative jurisdiction idea so here's my way of thinking about it so i may be misstating the law but i think i'm close on this so in patent patent claims are exclusive to federal court ok so hypothetically someone files a patent cl can't remove something from state court where it doesn't belong to federal court where it's supposed to be so i find myself we know legal evidence state of the ighly skeptical of the whole derivative jurisdiction concept well we were in state court because that's where the case file by freddie mac and when they lost in general sessions court it was freddie mac who appealed it to the state circuit court with this faulty appeal bond and if it was faulty which act contingent was under the all the circuit court never got any jurisdiction and that appeal but kind i mean that general sessions judgment became final under tennessee law but doesn't the statute say cases involving freddie mac can be brought in federal court that's it does say that and that's what for anyway years later was the right to destroy that i don't understand how any state court or litiga it didn't matter if they removed it or whatever with it no jurisdiction ever  the judge granted summary dismissal based upon these irrelevant facts about what misc was able to prove after march first and that's the reason why the that it should be reversed are at least are issues of fact about her compliance before march first that she should have a jury to determine and should have an opportunity to appear before a jury to prove that she did comply and here are the facts that show that idea and then i was in time to this law that wells fargo denied me now and wells fargo has contended that there wasn't even a contract we were not the guy did to do anything i found that just almost impossible to swallow because they received money that the whole point of this was they would receive money and miss gilbert was to get the loan and they'd already told her she was pre qualified so the fact that wells fargo just took the money sooner alike to now later letter based upon an illegitimate reason shows to die really acted in bad faith and this was sort of a scam on the part of wells fargo to to induce a homeowner to pay money when she's so financially distressed it was very difficult for her to do it they left her without an answer for a long time and then finally dropped the bomb well we're not giving me that but what do you think their villages motive was up think that the whole set up was to confuse people miss miss gilbert every time she called she had a different operator if you look at those transcripts there's no continuity that doesn't mean that's not a illegitimate reason for denying the loan well the illegitimate reason is i guess they wanted to take the property and get all her equity and i mean it was it was more profitable to wells fargo to foreclose than it was to make this loan that they had a profit basis for that so in the end at the end of the day wells fargo enriched itself both with the money they got from misc on the on the fa basis that they were going to give her the modified law and then they enrich themselves with a property that was worth twice what it was done it seems to me there's a lesson here and that is  a child support order that calls for mortgage payments and not child support payments into court i mean that that is how this all started and i would say the lesson there is that it's not a good idea to i wish i had been the divorce attorney because i don't believe it would have happened that way i'm would have insisted because that is how i got off track originally that allowed mr gilbert to escape problems you get when you don't make child support payments was that the reason it was structured that way because i mean there's pretty harsh rules if you don't make child support payments and i'm not sure they apply the same if you don't pay mortgage it was part of his support obligation that the change your court in or instead of paying it to miss gilbert or paying it in court he was paid the bills directly the utilities i don't know maybe i should understand that i'm just making the point that there's a lot of state laws out there that if you don't make child support payments the state can come after you in a pretty big way i think probably including putting some people in jail i don't think those laws apply if your obligation is to make mortgage payments and i'm wondering if that was what he was trying to do it was the judge's idea to set it up and it was subject to contempt power but he never got in trouble for that and thank you thank you to address issues two and three because he represents freddie mac as a plank if only to a little odd but that's the way the case what's your answer if you're able to answer it about her argument that listen the court order show that everything before march one was done there was something that show there was an obligation and the court dispersed the money in march one and why wasn't there are binding contract to modify the loan at that point what i understand it to be saying i respectfully disagree with opposing counsel is they were provided that certain payments could be made for the mortgage out of money that had been put into the court for pass to child support so as of more to one at that point mr gilbert had not been making payments he made something in the past it was put in the court we don't know but in march one money was dispersed and your argument is that it wasn't for ongoing payments of the loans at the point that that is correct number one but we have to step back from that is in that back in january of two thousand  in a phone call while mrs gilbert stated this is january twenty one obviously before march one the answer was he's not paying made my child support right now that paying per hour to more to until i disagree that she was receiving child support in any form or fashion at the time and that she was going through the entire modification process that's the problem is from some time prior to this time in january to at least june when there was a way just she wasn't receiving child support the court entered an order that provided for two trial payments of the mortgage payments but that order of the the thing with the loan madhu acquirers is that there be proof of all regular timely payments many for this position this kind of situation from a ms gilbert's perspective and you only can look at what happened after that that's not correct you've got to look at before that because he never was making the payments unfortunately mr gilbert apparently didn't do a lot of things he allowed the mortgage go into default he didn't make his child support payments but at the end of the day to qualify to get this loan mind she had to prove she had that income so she's told you in january th he's not making child support payments did you accept these trial payments after that period when you knew he wasn't making regular joe absolutely yes your honor well that looks a little greedy your honor i mean back up his her payments were four thousand dollars a month they hadn't been payments or not been made in ten months and so they offered her a loan modified plan at seven hundred a month right so she technically audiogram thousand dollars they're accepting seven hundred they take three payments and then she next no more payments they take those three payments after they find out on january twenty first that she doesn't have the child support coming in that is correct because she fertilized with a why would they do that she's a risk right at that point i believe so too but she has already said i'm getting child support of eight hundred dollars a month ok you could make these three trial payments but it looks like you're really not going to be able to pull this off if he's not making child support payments maybe it's not in your best interest to do this in hindsight that might have been the correct thing to do but she but but she said she made a representation that she had eight hundred forty five dollars in child support thinking that at some point mr gilbert's going to make the payments and i would have thought the answer was a little different the answer was maybe she should have wanted it but she still wanted the loan modification that's correct and that's if you i mean i it's true looking back on it had you said in january we're not doing this anymore it's not in your interest it's not in ours i guess in retrospect she would be better off but i don't think that's what she would have wanted she did warn it and that's what i was trying to get to is we're giving her an opportunity to try to prove that she said i'm going to get eight hundred forty five in child support thinking mr gilbert is going to do it she submits an application that says eight hundred forty five dollars in child support but the problem is there's nothing to prove it when it comes down to show was that you were saving food regular entirely child support payments she can't do it because he's not making the payments all right my only point is that maybe you should have asked for that kind of proof before you accepted the trial payment i mean it's ok you don't have to respond but well my bet is that this is just unfortunate all the way around and if things had been done in a little better order maybe it would have turned out the way it did she probably would have lost the house anyway but maybe she wouldn't have lost those three payments that you all then declined to return to when when it happened and that that's my point there's a pot of money there that could have been useful to her that that she but without gaining anything without gaining anything respectfully your honor that money was owed and more she owed a thousand wells fargo accepted seven hundred m she got to remain in the property and continues to remain in the property after she made that last trial payment in may of two thousand and ten she's continue remain in the property without making one single payment until she had to file a bond for appeal so she has gotten quite a benefit out of living in the home without making payments but the point is when she says she admitted all of the documentation it made her first payment at that point will forgo looks at her to determine does she have qualified to she have the appropriate documentation at that point she provides a clear order it's not sufficient so that's the problem as did they notify her at that point in time that it was at that point in time i believe the answer is no not when they were seeded initially they have to have time obviously to review the documentation in your honor ah see that i have two seconds how long did it take for them to notify her that she was not providing the proper there is a call log note of april the tenth where it notes that they closed the borrower and informed her that the proof of child support was needed and eventually it did not come forth so in may a denial letter was sent there is disagreement about whether she received it but we have briefed the issue of that the only requirement is that wells fargo mail a notice to the b good morning your honour's may please the court brought janice on behalf of freddie mac with respect to issues two and three regarding subject matter jurisdiction and the strictly answer am an affirmative defenses we respect we have to this court affirm the decision of the district court jurisdiction now as you noted this case was removed by freddie mache under its charter which allows it to remove even as a plaintiff in any point in time before trial and derivative jurisdiction according to the supreme court's prudence and this court jurisprudence is a procedural problem with removal and is not a substantive issue going to a federal court true subject matter jurisdiction now derivative jurisdiction as was noted in  in derivative jurisdiction is irrelevant if after removal a case is tried on its merits and the federal court interest judgement once a case on appeal party can't complain about subject matter jurisdiction now this court in  of its earlier applications of grubs in one thousand nine hundred nine in more diverse klein found that it could retain jurisdiction even after finding that the state court lacked subject matter jurisdiction that was similar to the patent issue that you brought up judge sutton with a case it was a rico claim that at that point in time had exclusive jurisdiction in federal courts and the court found that even though the state court lacked subject matter jurisdiction the federal court had its own original jurisdiction and could rely upon that and with the state of the state of the law that derivative jurisdiction is nonsense the state of should be called something other derivative jurisdiction because that's misleading what's what's the right state of the law so there's two points there your honor the first is that the state of the law is that the jurisdiction of the word jurisdiction is sort of a misnomer in that the seventh circuit in two thousand and eleven in road is first aside when under took probably the most extensive analysis of derivative jurisdiction to date and came to the conclusion that one it's not a true jurisdictional doctrine that they need to stop using the word jurisdiction there and that number two it is merely a procedural issue such as akin to a non reza i'm sorry akin to a resident defendant removing it's no different than that procedural issue and the second part of that analysis is well at what point in time must that be raised because it's true that you can get a case remanded to state court based on a procedural issue even if the state court would have subject matter jurisdiction the answer to that question your honour's was provided by congress in one thousand nine hundred eight when grub was decided in one thousand nine hundred two a party could move to remain state court based on any procedural defect at any point in time incorporated when they found that grub was in fact superseded by the enactment of fourteen forty seven c and they party must raise a problem with derivative jurisdiction within thirty days here so i think i understand everything you're saying just tell me how it works in a case where we just won't think of his jurisdiction anymore it's a case like patmore it's exclusive to the federal courts you remove within all the time frames would you say you can't remove because the state court never had jurisdiction and so it's not removable not subject matter jurisdiction rounds just not removables that your theory based on the current still or your honor that's what the seventh circuit would say i believe the seventh circuit and the fifth circuit would say that if you raise that issue within the first thirty days after removal then yes that is an issue that would require the case to be dismissed this mystery man did for the state court to dismiss for lack of subject matter jurisdiction of the derivative something still stands ok i got corrected it still stands but the point in time in which it must be raised has been greatly shortened by the neck on a fourteen forty seven c and he lesson months after this case was removed to federal court she was completely fine with this case being tried there both the affirmative what do you what do you accomplishing with this argument i mean you can just now file in federal court because if it's dismissed on those grounds would be without prejudice your honor that in normal case you are correct subject matter jurisdiction why object your honor this case is a bit different in its procedural posture than in normal case it would be dismissed without prejudice because this case originated in tennessee general sessions court which is a small claims court the state law that would go by that we would have to turn back to lying going to be dismissed with prejudice it's not a dismissal with prejudice but tennessee law would provide that the initial judgment of the general sessions court which keeps miss gilbert in the home would stand would stand firm and therefore we would be left essentially with inconsistent judgments in this case if this court was to affirm the grant of summary judgment yet find that the federal court lacked subject matter jurisdiction over the affirmative claims miss gilbert would be left with a judgment from a court that is not even a court of record in tennessee there's no formalities in that court whatsoever and then we would have a decision miss gilbert counterclaims and third party claims which extensively would a gated the propriety of the foreclosure sale and the loan modification process more you talk the worse it gets do you are sufficient to go to a jury and i believe she deserves that chain's thank you thank you thank you both for all three of you for your argument the case will be submitted with the per call the next