and for good morning your honors my name is barbara ferdie i'm here for the appellant katrina perkins steinberger i appreciate your time here today and i would like to reserve five minutes for rebuttal this has been a ten year odyssey for my client katrina perkins steinberger simply to have basic contract principles applied to multibillion dollar financial institutions that she's been fighting over the course of this lawsuit we've uncovered the truth about deutsche bank as trustee and how it functions we've uncovered the truth about real estate mortgage investment conduit and how they work that truth was not recognized by the district court and now we're here before this honorable court with these facts and hoping that  they get recognized i wanted to address first of all the recent order that came out requesting information our discussion about move and remedies this case is not moot we are currently in the six month redemption period under arizona statute for my client to redeem this was a judicial foreclosure the redemption period expires on july twenty five if this court finds the only reason this case isn't moot is because we're in that redemption period i would respectfully request that you told that period while you issue your decision so that eight years of litigation don't go down because of a week's delay she's still in the home and she's also now believing that  will be filing a supplemental authority with these case citations i didn't have an opportunity to do it before today but that's the us versus abel time case as long as there's a controversy the northwest environmental defense center case so arizona case law also indicates in this kind of a situation that the that the matter should not be made vinson versus martin and associates a very similar case for closure for closure sale occurred no supersedeas bond was posted and there was no claim for damages made in the complaint the foreclosure occurred during the litigation the court granted relief nevertheless and gave damages in lieu of the property and said if facts proven entitle t to relief under any theory the court should be of relief and retention of the home by deutsche bank at this point would be definitely be unjust enrichment because of the facts that are available to the court here also federal rule fifty four c is very plain that you can grant around maty that the rule says of that judgment should grant relief to which a party's entitled even if the party did not request that relief in their pleadings so that's exactly the situation we have here mr berger that could receive monetary damages and the credit bid on the home was eight hundred one thousand dollars i submitted my reply brief that i thought that that would be appropriate damages for this for closure that occurred when it should not have in addition to attorneys fees and costs as i said this is been a long long journey for my client at the expense of her financial and physical well being why don't you tell us why the foreclosure was absolutely there are five independent grounds for reversal of this judgment the first one is statute of limitations i think that's one of the easiest one everyone acknowledges the statute round before the judgment for judicial foreclosure was filed but the district court nevertheless granted which a bank judicial foreclosure finding that a couple of documents were revocation of acceleration under the law that existed at the time she issued her decision they absolutely were not but now there's a published case in arizona in twenty eighteen which makes it very clear that neither one of these documents revoked acceleration the two documents which supposedly revoked acceleration was a cancellation of the trustees sale which is in the record at eight fifty five and that trustees cancellation says nothing in it about revoking acceleration the other one that the district court found was a revocation is a letter dated august twenty three of two thousand and twelve which is eight forty five in the record again this letter has zero language in it about revoking the acceleration which was in place at that time under the new miller case communication to the debtor by the creditor m contain a statement that the acceleration of the debt has been withdrawn there is no such statement in these documents the acceleration was never withdrawn in this case on top of that ms steinberger obviously relied on the acceleration because she's been litigating this case for eight years and i cited case law that says that if the person is relying you can't revoke either  couple of other things that the four closers as i call them the banks on the other side claim told the statute of limitations but they claim there was legal tolling and equitable tolling there was neither one the legal tolling they claim are a couple of different things one is a short term bankruptcy filing but they never had before the district court the date of dismissal of that filing so this court cannot even consider that at all they tried to sneak it into the record before this court it was not before the district court i discuss that in my briefing they have the burden of proving tolling and they haven't proven it they also claim that the temporary restraining order that was in place for a time in state court told the statute of limitations again the facts do not bear this out first of all it was their choice to file a non judicial foreclosure they could have filed for judicial foreclosure way back in two thousand and nine two thousand and ten two thousand and eleven some time they never did they wanted to go non judicial so that meant we needed to get a t r o to stop the sale they could have cancelled the sale and filed for judicial foreclosure any time during their six year statute of limitations period they chose not to there was a preliminary injunction hearing set to determine whether the t r o should be dissolved they put it off and they put it off and they put it off to you know why because the judge ordered that deutsche bank appear and testify they did not do it's a bank to testify because they knew that i would discover what i discovered when i finally got them to testify in two thousand and sixteen which is that they have no standing and they've suffered no damages and they don't have any involvement with this on this forty it strikes me that certainly appreciate those arguments but asserts me that the strongest argument that the other side has respect to the statute of limitations is this claim that your client acknowledged the debt can you talk to us about that absolutely she did not acknowledge that under the case law in order to acknowledge the debt the d n c case the debtor must express some moral obligation to pay the original debt and to acknowledge it is to say that you're going to bring it current or pay it in full she never did that she obtained a forbearance agreement the forbearance agreement is in the record nowhere in there does it say she acknowledged th debt in fact the forbearance agreement and everything else she ever got from the four closers said by the way you're still in foreclosure this is only temporary but doesn't the forbearance agreement presuppose the existence of that and you forborne on terms agreeable to both sides why isn't that an acknowledgment of the debt because in order for it to be a true acknowledgment under arizona case law it has to be an acknowledgment a moral obligation to pay the original debt of forbearance by definition is i'm not going to pay the original debt i can't pay the original that and if you read the forbearance agreement it doesn't have that in there there's another case that even someone who listed a debt on a financial statement the entire amount and signed it the arizona court found that is not an acknowledgment of a debt that will stop the statute of limitations from running so the forbearance agreement absolutely doesn't do that either so i guess the same argument applies to this ham public application you're saying that because it's an attempt to modify the debt argument that the hamp application somehow acknowledge that that has to be disregarded let me ask you about this so that apparently there's a harsh about david on the record at age seventy one that says the following that apparently your client side says you agree that all terms and provisions of your current mortgage note and mortgage security instrument remain in full force and effect and you will comply with those terms what is i mean where is that being read from and it's in the record of eight seventy one but what document is that i'm sorry it's a hardship affidavit that comes along with that have application ok well once again that the actual terms of the hamp application are are not in the record well something's in the record i'm reading you it excerpt from the record you might want to look at that and come back on rebuttal and tell me ok it looks like i'm down to only three minutes so i will reserve the rest of my time for thought like you thank you  in arizona the statue of limitations is disfavored applying the statute of limitations of this case would wipe out a seven hundred fifty thousand dollars security interest and give mr emberg or an enormous windfall and i think it's really important to point out that this is not a situation where the lender did nothing for six years and then tried to enforce its rights deutsche bank as trustee has been trying to foreclose since two thousand and nine in fact the trustee sale was scheduled to take place on may nineteenth two thousand and nine and the only reason that trustees trustee sale did not occur was because of the bankruptcy filed by mr perkins and it was actually filed in mr perkins name filed by mistimed for the day before the trustee sale on may eighteenth two thousand and nine so absent that bankruptcy filing we probably wouldn't be here today after the bankruptcy mistimed or obtained an injunction that prevented foreclosure until two thousand and fourteen in her own declaration mistimed berger said in order to stop the pending trustee sale i obtained a temporary restraining order if you're not allowed to foreclose because a court or or pending action prevents it that is classic legal tolling here we're looking at one thing more than one thousand days of legal tolling and we only need thirty four days of  tolling and but tolling aside i think it's important to step back and remember that there's two ways to determine the cruel day for instance tallman obligations with an optional acceleration cause the first that we've discussed at length is the excel aeration date our contention is that the acceleration date is march twenty third two thousand and fifteen because in arizona the acceleration date is either the date that the notice of trustee sale is recorded or the date of the due to foreclosure was fi an act the more the other way is that an action accrues in the stats and limitations runs against each installment from the time it becomes due so it's important to point out and remember without excel aeration this long does not mature until june first two thousand and thirty five so that means without acceleration the statute of limitations technically would not run until six years after the last installment or june first two thousand forty one but in this case the district court correctly determined that the lender revoked acceleration in two thousand and twelve the recent case andre vs miller designs which was decided after we submitted our answer in brief it confirms that acceleration can be unilaterally of a revoked at any time so that means that we could theoretically revoke it even to this day assuming that you foreclosure was dismissed steinberger mr amberger argues that the loan was never d affirmative act analysis that the district court relied on even before versus miller designs and that was actually based on an unpublished decision at the time under vs miller dealt soley with the cancellation of trustee sale here we not only have a cancellation of trustee sale we have an august twenty third two thousand and twelve letter that communicated to the debtor that the loan was no longer and so accelerated in at least two ways first the letter warned the b that acceleration could occur at some point in the future the only reasonable interpretation of that language is want acceleration was no it was a loan was never exhilarated in the first place or to the loan had been diesel aerated which is what happened here second the august twenty third two thousand and twelve letter gave the borrower a new right that they did not have when the loan is accelerated by definition once a lender excel or exercise the acceleration clause full payment the note is required to avoid foreclosure the august two thousand and twelve letter allowed mistimed to bring the loan current by paying much less than the full amount owed on the no she only had to make up the payments missed so this thousand and twelve letter has no legal significance but that's completely wrong the august two thousand and twelve letter gave the steinberger more rights and she had the letter was sent and consistent with alone being decelerated the records full of other evidence and including as mr embury berger admits the foreclosure process was started a new in two thousand and twelve and this is you can see this by comparing the january fifth two thousand and nine acceleration letter default letter with the august twenty third two thousand and twelve default letter looking at both of these letters there's really no difference they b they both say warning the loan maybe excel or in the future but right now you have thirty days i think it was thirty days to just pay back the missed payments and you can reinstate we freely admit that the letter says what it says but that's why there's no disputed facts there's no dispute that these letters were sent there's no dispute that the letters were received there's no dispute that the letters or read so  seventeenth two thousand and nine as the accrual date as mr emberg or argues that means that we only need thirty four days of tolling thirty four days and to say that we slept on our rights when we were trying to foreclose sin two thousand which is by the way what the statue of limitations was designed for to make sure the people sleep on the right for six years looking at the record there's no way you can say we slipped on our rights it was us and forcing our rights that cause this litigation to be filed in two thousand and to argue that i read in the briefs that we could have wall the case of the trial court granted a motion to dismiss ok so to say that after the case was dismissed we should and there is a trustee sale pending to say that we should've i don't even know how we would have done it to say that we would have i guess filed a foreclosure complaint at that time i don't think that would have even been procedurally possible but even assuming it was once the case was on appeal for two years i believe since two thousand fourteenth not only was there an injunction in place that prevented foreclosure during that time and there's a minute entry even a couple   at least until january thirtieth two thousand and fourteen that's one thousand one hundred twenty days of legal tolling that's not even including the bankruptcy tolling which is fifteen days and that's not even including not in the record is that right application it's in the record that they have application was submitted on march twenty second two thousand and ten off the top of my head i don't know if the actual application was supposed to mean it was certainly in the the underlying record in the sense of it was used to support or motion for summary judgment i believe if it wasn't included as an excerpt of record i just don't know but as as your honor pointed out there is that acknowledgement signed by mistimed so in other words there's no dispute that let me put it this way was submitted on march twenty second two thousand and ten and there's no dispute that she made the ham payments i believe three of them and there's no dispute that we postponed the four trustee sale remember it was originally scheduled for may we continue to postpone it while she was being reviewed for this hammond now ultimately she was denied for the ham and it was shortly after that that the trustee sale was scheduled for november told again i can't stress enough if you're not allowed to foreclose because a court order or pending action prevents it that's classic legal tolling it's not fair to say that and it kind of gets to the issue of relief on appeal mistime berger has admitted that she she can afford to pay back even a portion of his life so even assuming let's say the foreclosure judgment was written down by half let's say the foreclosure judgment was five hundred thousand dollars instead of eight hundred thousand it still wouldn't change the faith and we read the briefs and we do understand  i did go back and look at what i think you were referring to i believe it might be on seventy three in any event this was part of a trial period modification that was presented to ms steinberger and she did sign it but it does not contain all the required elements of an acknowledgment of a debt and expression of a willingness to pay it under the case law in my briefing it doesn't express a moral obligation to pay and it doesn't acknowledge the justice of the claim and as i said before in the case that i cited even where the person listed the entire debt and the entire amount on a schedule of liabilities and signed it the arizona court said that does not reset the statute of limitations that is not an appropriate acknowledgment of the debt and expression of willingness to  pay with respect to the matter being told on appeal the facts don't bear that out and here's why before the appeal occurred foreclosures filed a motion with the superior court and said hey we want to cancel the sale and re notice it because they believed they were going to lose on the void for closure documents i opposed it the court granted it so they had an order hanging out there that said you can cancel the sale and re notice it especially whenever you like they sat on that order for a year until the case was on appeal before the arizona court of appeals at which point they pulled that order out because we had oral argument the judges appeared to be leaning towards my client so what they did was they pulled that old order out they canceled the sale and filed a motion to dismiss the appeal quick let's get rid of this thing before we lose the court of appeals allowed them to do that so to say that it was on appeal so we were frozen in time is absolutely false in fact they canceled the trustees during the appeal they could have just as easily said to the arizona court of appeals hey look worried about the statue limitations we need to tolling order or we want to go ahead and do a judicial foreclosure now what what should we do they didn't do anything they did nothing they sat back six years went by there's no told in here your honour's this case should be over the judgment should be reversed and entered in favor of steinberger on the judgment for judicial foreclosure and there are many other reasons  began i don't have time to talk about them five different reasons why this judgment should be overturned or honors the truth is out there deutsche bank wasn't owed any money which a bank didn't suffer any loss to which a bank is not entitled to payment under the note bank incredibly is the one who got a judgment for judicial foreclosure that's just clear error judgment needs to be overturned thank you so much for your time