thank you your honor i'm michael malakal i represent the homeowner putative class in this case where the name plaintiffs is misc brought over i'm accompanied today at the table by an associate of our as the court knows it's on june twelfth it entered a rather extensive opinion and a case called elliot and we were asked to be prepared to address that subject matter jurisdiction at the outset of argument today i'm holding in my right hand the rule fifty four b certificate that was entered by judge ambrose of the district court and  three significant differences between the two borders which should leave this court to conclude that the rule fifty four b order before this court that we are here on today  fifty four beach certification if denied counsel then asked for a twelve ninety two b certification and finally full circle here they then asked again for rule fifty four the certification but more to the point and directly to the prerequisites are brought fifty four b the court has to look at whether there are clear and unequivocal words that would indicate that there are no just reasons for delay in this case those exact words are  found i respectfully disagree with your honor because immediately after the sentence where he set forth the standard she did after saying and i'll quote there is no just reason for delay the very very next sentence and that's the standard but the very next sentence is pursuant to rule fifty four b of the federal rules of civil procedure this court has considered the questions relevant to a rope fifty feet determination and has concluded its order is final and ready for people when the court i mean they're talking about intent because under rule fifty four there has to be an explicit finding what i'm talking about is immediately the sentence first of all eliot did not have words or equivalent words like there is no just reason for delay and what i'm saying is is not only did this opinion have those exact words but of mediately the very next sentence the court said afterward referencing that and i quote yes she's using the term final and ready for appeal with reference to that standard no just reason for delay but but let me go on to make a second point that i believe differentiates the two cases district judge went through those five standards for the court to find that rule fifty four b was not satisfied in this particular order the court cites the alice standards and then by bullet with respect to those five bullet points mitchell who then obviously passed it on to judge ambrose i cannot tell i i don't fortunately i can't tell for sure from the opinion whether a separate statement of reasons from the judge is required i've read the decision about five times absolutely your honor in fact absolutely and i might add that that we noted that this court suggested that counsel in elliot should have done just that and and simply because of the timing we were that's and then i i deeply apologize and i again apologize for not doing that  i think today we have been and it is exceptionally citing a number of issues that impact pennsylvania resonance and we have a number of question certified under two state statutes which are consumer statutes which have widespread ramifications to both the lending industry and home mongers and other consumers and  those state just the legislator obviously balances the rights between consumers and and lenders and this court has been called upon to determine where which is somewhat but not completely modeled after the federal fair debt collection practices act which is also before this court and of course the court's opinion interpreting that act will presumably have nationwide handle the one i would like to handle first is whether there was a cause of action stated under the federal fair debt collection practices act the court held that it was not timely  based on counting up a series of stays under for you are out and i mention that because in this case the lender failed was taken over by the o t c yes i see i stayed the we believe there's a cause of action under the fair debt collection practices act quite simply because the time to start the claim is not when the complaint was filed in april of two thousand and the time to start the claims that we have asserted here are january fourth of two thousand and eight why do i say january fourth of two thousand and eight i say that because that off all her ninety percent plus of the foreclosure debt it turns out after the next couple months it was determine yes and if this court made that single holding which is evidence than the foreclosure history maintained by their collecting council that would pick up the five days that the developer court held that we were sure  i was going chronological your honor but i'm happy to begin in march oh my argument is is that in march a number of very soon the in march the debt collector went outside the bonafide air defense because they were notified by wells fargo that this debt had been paid for substantially pay and so that was the first opportunity where there would have been a violation done not that that particular date but if you looked at our brief we argued in our brief that the violation could not start on january fourth of two thousand and eight because the deck collectors had changed and that there would be some unknown period before the debt collector would have notified to dick clark in law firm and we said we didn't know that but as a result of discovery that we have obtained that in that record it's it's it was entered post judgment but it's in the record  yes i believe that's partially accurate i say partially accurate because we affirm that we stated in our papers that january fourth would not be the day that the violation occurred it would be the date that the debt collector was notified that the debt had been paid and we said would discovery we will be able to ascertain that and we said that if the court were to insist as required in our favor the court should accept that thereafter we learned the exact day and that exact date was march fourth but the court at all times we were under a situation where with all due respect to the magistrate court inferences redrawn against us and that is one particular inference that was drawn against us but in any event the operative date it's undisputed the records come from the debt collector is march forward and therefore we filed our complaint as we did in state court on january  within the one year statute of limitations and again i know we're only five days short and therefore we we have a timely client it's our position if the court does not accept that argument that the statute was stayed throughout the entire ministry of state process we say that primarily because we battled for over a year against the thank you and there are are five violation drawn or and they're basically the same under this the state act as as well as the from the federal the let's take one of the f t c p a violations which is the legal status of the debt or not claiming a debt that's not authorized by the papers and i might add that with respect to real property there's a particular provision where even an implication not only of misrepresentation is sufficient ok but what exactly ok what exactly happened on march fo twelve thousand six hundred dollars was paid i mean either one of those would have to result in an in adjustment of debt and instead it was on the public record and here we have a homeowner who completely paid the debt and yet the record the public record indicated she had not and the fact that they were telling her they being the debt collectors council that she still loved debt when in their files as of march they knew she did not long on the still year after she had filed to have the case removed in her filed in federal court at the state for closure case  remove i don't know i wouldn't measure it that way i would look at the bona fide error standards in ask it did they have reasonable procedures in place to deal with this situation and if they had reasonable procedures in place and you could be a month off that they have under their reasonable procedures then they would have had a complete defense if they had no reasonable procedures in place then maybe a week would be too long it would be a fact intense inquiry cited too as well but the initial complaint was dismissed with leave to amend he made no significant changes and this time because it's a complicated procedural setting because there were other parties the statute of limitations defense in terms of tolling was only advanced by the lender defendants who are still back in district court all we said is the only act complained of is the filing of the complaint there was no other act affirmative act  mujer and had no duty to glover to remove a complaint and the attempt to supplement the record post judgment by referring and misleadingly referring to an item that was contained in the log of the law firm which is just says there is a modification agreement modification agreements frequently provide that a judgement or a case will remain until there's performance under the modification  that's correct however if i believe the first opinion the intention was that it still doesn't state of cause of action but will also phrase it in this view he did not the judge did not hold that the amendments change the first decision the amendments as i've pointed out in the brief are purely stylistic it he did not rule on it but you one would think that he would allege that he would have held one way or the other if he was going to change his mind as to would have said well now they've stated the claim but we'll move on to the statute of limitations or right of course  april two thousand and six when the foreclosure complaint was filed there was no other action taken by huge or the way this went down is that there was a foreclosure complaint filed counsel was retained by glover who filed preliminary objections on the basis of improper verification counsel for both parties agreed to put the matter in of a and while they tried to work out a modification agreement and no other action ever was taken on the case it just sat there a couple of years modification agreement the terms of which are are known to you dr so the only time when there was a request made to remove the to withdraw the complaint was made by mr malakoff to me in two thousand and nine and i spoke to everybody and had to come the complaint withdrawn but there was never any demand directly to glover to withdraw a complaint if it were a violation of the modification agreement between wells fargo and glover to withdraw the compliant for the complaint not to be withdrawn that's a claim she has against her contractual party that's correct and that's the first time it was alleged as a basis remember this was a moving target originally it was based on the complaint which clearly was time barred and after i filed a motion to dismiss they came up with  that that's correct and i cite two three cases in my brief which are not even addressed or mentioned which are the myers versus essence cases out of the eastern district of north carolina humphrey versus brown the district  maryland and maynard versus cannon in utah all of which hold that in action is not the basis for an f t c claim the one case that they respond with the mccullough claim is not a in action case in that case there was a summary judgment motion filed it wasn't a foreclosure case to begin with and it was a case in which the debt collector attorney representing a wholesale purchaser of of debts for which they had no documentation filed a summary judgment motion that was both time barred and that they could not prevail on because they didn't have the documentation that's a very different situation than what we have here your honor  and there is not a single case that i have uncovered nor cited by mr malakoff that holes that in action or the failure to do something the utah cases instructed because there was a record notice of require an act of be undone and that's really what we have here whether the f t c requires a foreclosure action which is filed and there is no other anything that can be quite classified as debt collection activity saying that now it's it's been taken care of there's a modification and somehow the duty is being placed on the lenders law firm and there is no such duty to from the law firm if there is a claim it would be against that would be a well if there's reported i would be a different statute of course i wouldn't be the f t c p s a that would be the fair credit reporting act your honor and that's not a claim in this case isn't the complaint already was there your honor it is there but there is no again the duty if any would have come from the lender not the law firm what was originally it was after a motion to dismiss was filed it was amended to say the continuing communication and judge mitchell have that it is not a communication the original complaint was yes it was based on the request for attorney's fees in the original complaint that was the original theory course and this glover was represented by counsel in that action and no such motion was me that's that's part of what i've been arguing that she's represented she has counsel if there's a remedy for failure to withdraw with discontinue a complaint the remedy is against either her own counsel who did nothing about it or the lender but not the lenders counsel and in this case it's an unusual situation because  you represented the prior lender not wells fargo there was you know there was a replacement lender and that may have been part of the reason that it was a little bit muddled but still it was well within miss glover ability to have that case discontinued through counsel if all she had to do was file a motion i'm sure she had just asked it would have been done well i think in part that was already resolved by judge whether it's opinion which i furnished to the court the other day in this in the state law claims and by the way there's no wipa claim x six in this action that was discontinued and filed in state court judge whether dismissed in that dismissal he said any claim based on the fair credit uniformity act would be barred because of the fact that there's an exception for lawyers filing pleadings which doesn't exist in the f and that's what this is this was a purge of the original lo is undisputed that that's the case your honor yes she used it to buy the property what mr malakoff is argued is that the accepted definition of purchase money mortgage which is use as you said to purchase the property should be applied only to seller financ g i don't believe he cited any case which limited the purchase money mortgage to seller financing he went into a deep history of the derivation of purchase money mortgage but it's  financing but it's it's it states on the mortgage itself that it's a purchase money mortgage it's not denied that it was a purchase money mortgage in terms of it being used for the purchase of the property mr malakoff once again is coming up with a creative argument but there's no support in the law to distinguish between seller financing and by bank financing for purchase money mortgage let me add finally on that regard since once again since the last act was the filing of the complaint even if it's two years it's time barred they filed a two and a half years after the filing of the complaint so you'd have to similarly except the notion that not only are even the lawyers are exempt pleadings and the only argument here is that they filed a pleading and then didn't withdraw it true that it's purchase money mortgage something other than what it says and finally  me just make one since i have seven seconds left i think that the court if they get to this issue should take a look at whether mortgage foreclosures with nothing more no no letters no debt collection i don't think there's any doubt about that well that's been decided in the state court action you're thank you very much  if there's a common nucular some fact then it relates back to roll fifteen here there was much more than a simple common knew it was a fact but a common nucular it's not the law because if you looked at my stake plain yes and that's that seems to be the position that the defendant has moved to when it's brief that's correct but yes but you don't have to under will wait you don't have to plead any legal theory the facts were the same but in fact a series of cases going of the next time future years in terms of a common understanding this mortgage was entered into by citibank citibank clearly would have known that the american bankers association definition of purchase money mortgage is the same of sars citibank would have also known that the a b a american bar association section on banking has a dictionary when terminology attorney general guidelines which were basically incorporated into the s c you way an end and in that we have provided the court the pennsylvania boltons which showed the changes that went through the the publication process where sometimes they used residential mortgage sometimes they used purchase money mortgage different words mean different things and how the end result was with the argued today i'd like to make one more legal point and one factual point he as a long modification agreement was signed on june fourth two thousand and eight the debt co council had notice of that in march of two thousand a very first complaint asked them to move remove that for closure action before we became involved they were being negotiated by document forty eight we made the demand to remove the foreclosure complaint at the very outset within months of the time that the debt collector council learned according to them it is no fair debt collection practices act claim as c e u a claim to let a complaint remain on the books for years and it's not an uncommon experience because the lenders are concerned that lo modification agreements even when they're completely paid are not going to be honored so you need the homeowner is severely penalized by the fact that they can't get credit longer of the debt but any person any time they would go to get credit they would see that they owe ten to the house and dollars and so it's a very serious problem and the question is