we lose somebody consensus nation he went page by page fact by fact of the entire zapruder tape and all of the warren commission's findings both factually and speculative and had a very hard time making up what he said to be the truth in this particular case we have a similar circumstance we must look at everything in the light most favorable to the bank in order to conclude that a second foreclosure is appropriate and that is caused by the jets to position  sixteen or judicial order foreclosure was issued now in texas what's required after that point is the nontraditional portion for the bank to take that award or to place the property for sale at the courthouse steps and to follow  through they didn't do it after completing the judicial process they went back with a different service and company who apparently either did not know was mistaken or at worst case is running up the expenses to the double degree the debtors and refile the entire process again the second portion is that the plaintiffs or the appellants case did complain to the state court jurisdiction we filed a lawsuit which is our specific constitutional right or texas home equity law to challenge the second expedited foreclosure and if you look at the record we're very specific we said that these debtors wish to buy back their property and they refused to pay double charges for double attorneys fees double litigation and double costs where the bank is doing a second on this is sorry foreclosure on the property that they shouldn't have to specifically the home equity law allows for the bank then to dismiss its initial expedited foreclosure case and proceed under the terms of the second what they call a private cause of action and that's what was removed to federal court in this case the third term is that our actions were subsequent in time the first judgment is twenty sixteen and our lawsuit feldman applies when the defendant who is not the losing party simply remains to federal court to change the form i don't have in this case is unique in that we have a bifurcated system of foreclosure in texas  where the second cause of action the private cause of action in response to an expedited foreclosure proceeding is filed by the homeowner and i have no federal authority to where now that case is being removed by the bank and we argue in equity it would be inappropriate for them to remove it and argue out of both sides of their mouth and one case there is rest you got in collateral estoppel the other case we should remove this case and have it done expeditiously in federal court and finally of course the fourth problem is that we asked the federal court in this case in our pleadings to set aside the relief that was granted below because of the ongoing foreclosure process exceeding the original term allowed now in my first argument i go over the search limitations problems and in this case that expedited foreclosure procedure is what seems to be causing all of the disputes in texas sets up the only allowed instance  loan on their homestead under the texas civil practicing remedies code sixteen point zero three five a which tells mechanically how to handle its breach of course the homestead statute comes directly from the texas constitution article sixteen but the the remedies code gives us the two manners and methods by which the bank should remedy default now the bank argues that they're mutually exclusive and i say no that's absolutely character kirkaldy not true if you read the rules they talk about steps a and steps b also b is explained in effect under the texas rules as to what to do with that order once you obtain section eight specifically says that the bank told the statue of limitations if they file their lawsuit within four years now it's talking of course about their expedited petition for foreclosure but that same texas constitution says that the debtor if you want to do discovery if you want to dispute any of the facts alleged by the banks if you want to create any issues for the court to review you must follow your own cause of action those things are not allowed under step so if the homeowner has a nice mutes whatsoever they must file their second private cause of action to the bank calls and proceed in that specific instance to challenge any of the about issues section b specifically says what you do with educational order of foreclosure afterwards and it's very specific it says once you have that the sale the sale of the property following through with your judgment the execution of the judgment must occur within four years and when the cause of action accrued under these facts it would be when they issued a notice of intent to foreclose in two thousand and twelve september the eighteenth is with the record so is now the bank which is to say that all of that was reset that they sent a new notice of default in two thousand and fourteen and that will reset the clock and get them another four years he said realize none of their authorities speak of a case like this none of their authorities say that the letter notice of default which does not give you the option of either paying off the balance paying less than the balance having a reinstatement fee or having a renewal fee is given so the court has to interpret or guess what the intent of the bank was by sending this new notice of default the cases that are cited by the by the defendant in their let's say born and leonard talk about recessions of notice of acceleration that's a totally different creature you can abandon an acceleration which is notice to the debtor that the entire debt is due in fall by sending a specific rescission the texas legislature even codified this principle by saying that simply a letter must be proven that it was sent not that it was received but simply that the bank sent the letter will reset the statute of limitations to give them additional four years to follow through that is not those cases and that is not this case they simply sent a general letter giving the homeowners that they were in default in two thousand and fourteen and now they want to rely upon it  does not apply you cannot argue that in this particular circumstance because this is a unique legal situation where these types of loans are regulated by the civil rights and remedies code further checks rules of procedure seven thirty six point nine say very specifically that if you don't complete these two cause of action both the judicial foreclosure and then following through with the sale it becomes void and you cannot collect upon the dead now it sounds terribly owners to tell a bank that you belong this money you've waited for payments you filed a lawsuit retained a judgment but if you don't follow through and sell the property within four years it is void but that's exactly what the texas supreme court told all of us in lenders versus in the lenders case nation star versus lenders four years is four years to quote the court record if you don't finish in that moment time you're out of luck so this particular proof positive of resetting the abandonment of the acceleration and starting all over again because there is no statutory support for that nor is there precedence saying that a notice of default without any particulars or the specific facts is now as a matter of law resetting the clock in terms of abandoning the acceleration so in arguments about the summary judgment you point out to the court that the court is not taking anything in the light most favorable to the  facts to attack furthermore the contract conflict in seven thirty six point nine between their interpreter protections of what the current law is for accelerated notice versus the private cause of action really should be resolved it would not be inappropriate for a certified question to go back to the texas supreme court to say that the limiting language of save seven thirty six and article sixteen applies to both part a and part b the excel aerated notice of appeal when it's  bank as well as the answer to the lawsuit filed by the debtors in response to that accelerated notice of appeal it would seem to me that the rules would apply equally to both parties because that would make the most sense finally  in issue number two we try to analyze the court's decision in a district court by saying the collateral estoppel in abandonment are decided against the opponents and we don't think that can be true in this particular case for the reasons we spoke about with the statutory arguments about collateral estoppel not apply in home equity loan cases and because if you think about it they wish to have it too as we have a previous judgment we're not going to allow you to collaterally attack it but now we're going to claim to have a band to waive did to raise a new specter of a new question or a point of law and start all over again so they want the benefit of collateral estoppel and the benefit of simply ignoring setting aside or dismissing entirely the very first case in the judgment they approved what they're doing here is creating an infinite amount of time for banks to foreclose on properties there is no s they must use existing law and follow through and complete the sale within four years but they're trying to say no no no no no our abandonment of our judgment will reset the statue of limitations for that as well and that makes no sense and i cannot find that type of language or that type of analysis in any of the mortgage cases involving texas of the fifth circuit what you're doing is making an overly broad totally encompassing non statu is type of category with the banks and all of those things are rejected by the cases of lenders as well as count encountered the court specifically warns about this and the cycle and last minute or eleventh hour cancellations to be the statute limitations by three days are not appropriate and if you think about it it makes perfect sense and attorneys never say that about statutes or a good part of a says you must order of judgment part b specifically says you have the remainder that for your time to complete the sale it takes two months to do that there is no excuse for why the bank simply chose to ignore it now the bank wants to argue equity and will tell the court that there have been no payments by these debtors and i would point out either offered or accepted by the bank since two thousand and seven  question what on earth were they waiting for for the last eleven years to foreclose on this property once they had their judgment again the question is what are they waiting for i think the best explanation is the hypothetical weepers we put forth their brief the service in company changed at present it's celine celine did not know about the initial litigation did not know about the judgment and simply started the process all over again well the debtors do not think by contract using both the data trust and the original we know they should have to pay for duplicate services and two sets of attorneys to obtain the same result and century mentions a lane in address they in the matter of this release that we were cries to while the case was on appeal to us we ask both sides to follow the briefs and so forth  presented to us was that the whites entered into disagreement with selena is now the loan servicer that appeared to release d o j from all these claims it said or the other side said in their response that you know of this where we think that it's void because it was done contrary to all the rules of the canons of ethics and to the procedure neither attorneys and i believe counsel of his word had any notice of what was going on my clients were very specific in our response they were approached by a realtor and on attorney spokes person who gave the money to clean the property upon their exit because the foreclosure has gone through in the bank has taken title back in its name and they were over money in what's called the cash for keys some situation no it's not a settlement because there's not a formal document we thought until that appeared from counsel's sent to me on the last page if you see right above the signatures is a paragraph that releases any and all cause of action for anybody for any time amongst these parties neither attorneys were aware of this the clients are not understanding the impact of what they signed and they have not been paid so that agreement arguably is moot as well as the clients did not surrender the property for the cash there was no consideration exchanged and the document was done in violation of all the rules and ethical procedures that we as a co because the argument here is that the procedure was done in appropriate and the order finding it should be allowed to go forward has got more appealing we got hold of her situation thank you after all this has happened that you about the costs and fees these these people are trying to buy this property yet the price tag they're being given to do that includes duplicate filing of this lawsuit which is what we challenged the very beginning and were summary judgment or doubt exact same thing would happen it would be removed to federal court and the same exact brielle let's say well here's our problem just one of the damages we have from the second lawsuit can only be challenged in this case that's what our pleadings are doing challenging the duplicative foreclosure proceeding upon which this house was sold so if we void out the judicial foreclosure proceeding in the second proceeding then the sale that went through this year is also going  and any court to says the foreclosure that happened this year is voi what is the specific relief you're asking us for here now got another question after that but just tell me in a declarative sentence what is the relief you're seeking from this pound overall the order granting summary judgment as a necessary evil their costs and fees yes are an arguably at that level they would if they're going to continue to insist that they waived and abandon their initial acceleration would not apply to their jobs where that the cost and the you're talking about that you would see to get additional code is that not all relate back to the original state court judge yes so why isn't the relief you're asking any extra completely intertwined with the original state court judgment where you to my fees whatever i mean doesn't  to attack or undermine or get relief based on a judgment in state court that was right again and that to me is quintessential rockefeller it doesn't have to be the case where the plaintiffs in this case are remove controversy here for the federal court given the foreclosure all that's behind the boards just seems like this is an avenue to collect some ancillary fees and so forth that have nothing to do with the property they're not in  you to blame here and i'm trying to cut to the change your time i p's in this and that in the other and that's not why we're so in the business to be doing it but you've got your rebuttal time but i want to ask  along with the question mike golic they're asking about you know they're not in the properties for cause i mean all that stuff is going it just seems like continuing litigation about a lot of ancillary things but it seems like it's beyond us but that's just to set a point on it you've got rebuttal time let's hear from the other side on all these other points and then you'll have another opportunity to respond to all it's been said yes all right ok mr broke a film and definition leigh sales but still to me it is it all goes back to the original judgment in the claim they're asking when asked the questions about you know why is it his case gone you know i mean why is it moot in that sense now we get editing in about a release agreement that the lawyers in front of us knew nothing about who was this third party who comes from mars or wherever you know they get the class to sign is so we doubt that now in the pot you know releases all claims that have anything to do with anything that was pursue it host for club events and process and i'm going to speak a little bit out of school here out of school in terms of these things are not in the record and secondly i am not apprised of the entirety of the detail operations of  my client's real estate side or their for close or side as it typically doesn't affect what we do but these are current compartmentalized operations that is after foreclosure once foreclosure has occurred which it did in this case and that it occurred because a first of all you have a twenty sixteen state court judgment that includes a specific judgment permitting foreclosure which is as we have argued completely consistent with the texas constitution and the home equity lending provisions there n as well as assume the civil practice and remedies could provisions that are pertin release for closure has been completed and most recently we provided the court a further notice which was a second signed acknowledgement of having of the whites having vacated the was a bad deal or we didn't know what we were signing or whatever their stake or claims might be these it be a release agreement they entered into so be it but this case is not a hunger and there's not a controversy i'm going to confess i've had a hard time getting my head around exactly what series it is we're arguing here if these borrowers had built some equity that equity might be affected by whatever permitted cost and fee is got plugged into a bid price at a foreclosure but it is worth while to keep in mind this is a loan that was was taken out in two thousand and three two is out of two thousand and four and there has not been a single payment made for over eleven years these folks have lived rent free mortgage free for eleven years and apparently date this council does not propose that they live or anybody live free of his b s i don't understand which fees i  don't know i gather that what he may be talking about is his legal fees i believe what mr can't and he can certainly addresses i believe what he's referring to is after the twenty sixteen judgment there was a new rule seven thirty six hundred seizure rules state of texas proceeding filed by the current service of then current service or to get approval to go foreclose it probably could have been it was in all likelihood an oversight wait a minute we already have a judgment from a state court that permits us to do this we don't need both nevertheless somebody went down the courthouse and filed a seven thirty six to get things rolling so they could move forward with foreclosure that they were entitled maybe it's the fees of having to deal with that he speaks what  in the way the process works as a court i'm sure is where is the lender may go into state's court and use the specialized procedural rules to get an expedited treatment order permitting foreclosure if the debt whore chooses the debt or may file a separate lawsuit challenging some aspect of the loan transaction that seven thirty six procedure brought by the lender is immediately mooted it's dismissed it must be dismissed if this new lawsuit is filed so is this new lawsuit that they filed in response to the seven thirty six  fees whatever it cost a lawyer to put together petition to attack on whatever basis and it is that separate proceeding to forestall they eliminate the seven thirty six request that we then answered in a move which is in this case if that's completely unclear to clarify any and i know it's a little bit confusing percentage really but that's what we had like to say what did their complaint in the second suit say that they got t r o to stop the foreclosure they did they they said we were barred by tiang were they seeking in the state court action they were trying to say i believe my best perception of what they were doing is that we were barred from actually foreclosing by passage of time by limitations and in order to do that payment that fees anything else besides i'm sure they had a general prayer that said all of the relief that didn't talk about you can foreclose but you can't double people have at some point in time wanted to put a quote by the property i have no recollection of anywhere in any of the records or anything i've seen related to this record that these folks have ever said hey give me a and i haven't seen a copy of the canceled check but and who paid him for what the real estate agents that are that manage this property post foreclosure for us and either lease is it out or or be puts it back on the market for sale the third party is my understanding generally authorized to do it cash for keys to expedite getting folks moved out right rather than going through th move up that's what they were offer us to do and that's what they did do and in fact even in the correspondence that mr cantu provided to the court with his letter in the sponsor of the court's inquiry about that release i think the last thing in the chain of communication between the real estate folks and the debtors was hey i'm no lawyer here i'm just a real estate agent i heard that there's a problem and i won't be able to release a check until you've checked with your lawyer and get things worked out so subsequent to that november sixth i think is a signature date on the the most recent document we provided them or which was when the folks  ok we're done with cleaned it up anything it's left you can throw away without it so they've surrendered the property and that suggests to me that these people did what they wanted to do but once again if if if there's a problem with that process and if there's no there's there's no ethical violation spell indication anywhere that some lawyer in appropriately contacted a represented party and i think that's the implication here a real estate agent who has an authoritative to act as a real estate agent and facilitate the move out from the property it's managing that's how it is and she says in her own email i'm not lawyer you better check with your lawyer apparently there's a problem before i release the check live now release the check now the people have moved out we're done that case is over there's a complete and broad release of everything has to do with the loan the mortgage the property the foreclosure everything it's gone so and there's no way that my client can't can't go and try to recover anything from anybody that might have been a a cost to us of going through litigation because the texas constitution says you don't all you get is the property and recourse and their and i go back to the citation we made and in our letter brief on that to judge posner where he said if somebody is coming in and trying to simply of void the effect of what they've done from from the the the bar over side here is this twenty sixteen counties they sued the lender also in one of those seven thirty six proceedings separate lawsuit lenders seven thirty six goes away they're required to come back again in that case the lender counter claimed and said ok i'm kind of climbing climbing for judicial order for closure on this property in that case the same twenty twelve acceleration was the basis of a limitation or an argument and i think was a limitations or you meant them as well service or and they take a look at the books and records they say these people have been involved for a while it's going to cut touch with them as the court is well aware there's all kinds of federal regulation down about what lenders may or may not do when they want to go foreclose a proper they have to give folks an opportunity to get things right and that's why these things can in admittedly unusual cases take eleven years of nonpayment before we finally get to the point we're at because we have to give these folks a chance and sometimes they do say oh maybe i can find some other money no evidence of that here sometimes they do say here's a problem can we make a deal you know do work out whatever whatever all of that kind of thing may or may not have transpired at some point in history not part of our record but is part of our record is there's a thousand and sixteen judgment that says no no no your twenty twelve notice of acceleration was abandoned by this notice sixteen a cruel period is for these installment so one of the two methods by which to go forward with foreclosure is through a judicial that four year period had not yet expired when judgment was entered in the second person on the same basis by the way because once again in the twenty in this case this limitations defense now this abandonment issue i don't know what a band that is abandonment the fact that somebody may have inadvertently filed a seven thirty five perceiving they did really need to file at doesn't seem like an abandonment of texas judgment list for ten years that's not mentioned in the federal district court judgment abandonment and that is what i mean right that's what these are all we've got in front of us is a federal district court judgment that doesn't deal with any of this right that's not an issue in this court i agree one hundred percent but that's what i heard argued here this morning was that we somehow abandon an initial foreclosure where there's only been one foreclosure and almost at a time the court is high on top of this i believe we have no controversy and these people have now released the lender all representatives the lender for everything doing this property they've moved down they've got their check it's over if he wants to file another lawsuit if they want to follow another lawsuit in state court and say something was untoward about the way that happened so be it now the case for another forum for another day or thank you thank you  we specifically plato let's stop stop right here we've got a federal court judgment in front of us that says the only issue you right deal with the touch for closing and limitations you've waved your breach of judgment that doesn't deal with that you can't argue to us anything about fees at all that's not in front of us now we found out the property is foreclosed it's gone so it's over isn't it what what it what relief could we bank has a right to foreclose we have a federal court judgment in front of us that resolves the issue against you and since then foreclosure has occurred there's no relief we can get foreclosure has occurred there is nothing we can do to help  property has been foreclosed you're on your suit in state court the government here was to forestall foreclosure and that's what you asked the federal district court to do was to forestall foreclosure you wanted to quiet title and get get tired of the property the district court said no you lose in the meantime the property has been sold so setting aside the federal district court judgment does not change the fact that the property has now been sold we can't grant any relief your clients get it decided the last case up is springboard you can come on up to the deal