i request a five minutes for rebuttal play by thank you first i'd like to thank the panel for its decision in the initial store case and we've got some complex law that we're dealing with here but that particular decisions especially in correcting the mortgage case in general are where things get bogged down a little bit with this particular case i think that if we look at the factual issues separately and first things there's got a little bit more clarity with what's going on from an in part because of the evidence submitted in support of that affidavit which is the a launch of the note and that that there's no dispute today that that was false or that document was false there's there's  into with the arguments the complexity is whether or not the original know was in a different form years ago and has some indorsement on it instead the facts though as it pertains to the foreclosure that was filed against our client that summary judgment was granted that was predicated upon a note with no endorsements on the back and a launch attached to it that was purported to be firmly affixed with an affidavit swearing that that document was true and accurate of the original and that was not true that was that was all false the way that we know that is false is because the launch was a had to have under ohio law had to have been it physically firmly it to attach to the original note and it wasn't because i know it was over in opinion yes and you're saying b a c didn't hold the note at that point that is the evidence presented to the court the truck that's exactly right so who held the note that is that is the million dollar question the the answer as it pertains to the evidence before the court is countrywide bank f s b because that is the entity on the note who could foreclose because there was no the launch is out and there are no endorsements so the answer your question as it pertains to foreclosure was countrywide not be home and servicing lp now countrywide later merges with bank of america and bank of america later purchases b a c so we get to this confusion where there's a lot of references to bank of america and the dish record but that happened the buy that merger or that acquisition of b s e happened after this foreclosure is filed so once the launch is stripped out because it has to be in there's no a dispute under the no because no same as a regular contract is the same the violence of the money i don't pay and they can sue me but they can't take my house they need the mortgage in order to take the house and the murder so that's where merced comes into play his ability to take the house yes walk through the point you are making in terms of the evidence you submitted in support of your position with respect to the summary judgment motion i mean you just said a lot of stuff and a lot of is conclusions but it can't just be your conclusions it's got to be it's got to be an evidentiary basis and walk me through where we are to and the various pieces of evidence that would support the conclusions that you have just offered us i love that question i appreciate it quite a bit you know i have to love it you just have to answer it well the exact cites are going to be in our brief you'll be able to go through point by point here some here some main points at any point so i know a mediately just by the deposition not to mention the the the actual logs of the bank of murray's the representative you're referring to i don't have his name here i think you should i know  lawsuit was predicated upon should have been filed the wrong party filed the foreclosures the answer that that's because of a defect in the note that's correct as well as he said that you can't foreclose with just a mortgage because a mortgage is incidental to the no so first you have to have a financial obligation have to have a default under the note before you can take the house is just you know the way where it is but i mean what i'm asking why you have to hold the know why what you've got the mortgage you have information there's been some of that paying what owed why can't you well mortgage is a lien it's just a lien there's no individual it's just a lien with it's really beautiful when you can exercise it welcomes your property that's true as long as you have the right to exercise it and your rights i would like to cite i don't know you can only utilize the note problem as opposed to the mortgage problem they have a problem under both the note and the mortgage but you do have have and i'll concede that the  property laws are going to be under ohio law than it is you know i said supreme court but this is so i thought i thought there's a sixth circuit case that says that you can do it you can either be the holder of the note or the mortgage to br four two thousand and fourteen and i don't know the timeframes for ohio but i can with research assure you that you need both in order to foreclose what is the relationship between the california company that apparently held  within their vault on behalf of several different entities well that there's never been tree by sfard that right the testimony in the ok what evidence do you have to the contrary ok so  the what i have is the document that was filed before the state court and what that shows and what a hollow requires that show and that the law requires holder with holder with rights to enforce that the note is made to the person and his of well the i don't know how to answer that question exactly because it doesn't go to the the the issue of of where we are with the  goes to the issue i want to talk about i understand i don't i don't know how to i don't the contras came out in two thousand and sixteen as part of a deposition that we took of it that it's making a lot of claims in there's a lot of testimony but there's no written documents there's no physical piece of paper from them that says here's precisely who to who we held it on behalf of on this day so i will they have this testimony and all i have is will prove it and it's you know well it's your burden to come forth with something that creates it once they've presented some evidence it's your burden to come forward with something that shows us there's a genuine issue of bad well i would rely on find the evidence in our record of what happened in state well we both sides cite pretty extensively to it there in what it is the the documents when i am not intending to ask you difficult questions if you're familiar with the summary judgment record then you know where that evident sure relying on comes from i mean that's just granite in state court was based on completely fabricated documents and that because of that the bank of a home on servicing did not have standing it should never have won that case my client should never have been as part of that lawsuit some other entity probably countrywide home loans should have been the part of a real party in interest there thank  you can you start out telling us how many minutes each of you wants to take yes your honor my name is frank mr i represent bank of america in this matter beside me i will be taking eleven minutes beside me is mr rich the bosses he represents both miss hill roxas and we also have david wallace both at the courts discretion we plan to take a live minister myself and two minutes for each of my colleagues by thank you thank you the order of the district court granting summary judgment should be upheld for three specific reasons number one this court in fact this panel gave the district court a road map that stated to be sure slurps injuries will vanish if the defendants can prove that bank of america was illegitimate mortgagee that is exactly what we proved through the undisputed evidence and that is what the district court found number two the district court did not err in this in denying mr slurps summary judgment motion because he failed to support a single element of his rico claim the assignment was not false because miss hill had the express written authority to execute it and mers could assign the mortgage regardless of the originating lender status mr slope failed to prove the existence of the predicate acts of mail or wire fraud he failed to prove and enterprise a pattern of racketeering activity and nexus and as we've discussed he failed to prove an injury and finally all the issues that we've he's just raised here today is our final reason for why his claims fail because mr slope cannot amend his entire claim in his entire case by raising issues for the very first time in a motion for summary judgment so let's discuss our first element bank of america with legitimate mortgagee as proven by the evidence and found by the district court thus his damages have vanished so remind me this talk about the fraud that the state court did the district court judge consider that and rejected or what happened to that yes your honor in fact mr the district court judge looked at these new found claims that mr slope raised and in fact let's let's jump to that because it's it's a very interesting mr the motion for summary judgment to change the entire basis of his claim although he still use the assignment now he's got these claims for the first time of multiple versions of the notes this alleged manufacture of documents which he includes the line jen he also discusses that bank of america and alice are obstructed justice and this alleged perjury well i would point to you that this very court in guthrie stated to permit a party to amend their claim in an m s j which subject to defend it to their surprise and smacks of gamesmanship not permitted by the court or by the civil rules that just for money what a judge charges that star member what he did with your to be his big point and i'm just trying to figure out what's going on well judge starr just looked at these specific issues and the one issue that he  looked at specifically was the ownership did he have to have ownership and the district court held that b a c was not required to own the loan in order to enforce it because under ohio law the u c c does not define standing in terms of ownership but whether one can enforce an instrument judge sardis looked at this and said be a she had possession of the note as early as december of two thousand and seven and therefore could in fact enforce the note and because the mortgage follows the note the mortgage or do you need the foreclosure was proper further the purported perjury and obstruction of justice claims occurred after the purported record tearing activity in the foreclosure action so it's logically impossible for mr slope to been damaged as a result and finally mr slope is asking that this honorable court leave its commonsense at the door and try to convince you that legitimate mortgage litigation activities can form the basis for rico's predicate acts of mail or wire fraud however the eastern district of new york looked at this exact issue and said to allow legitimate litigation activities to be construed as a predicate acts of mail or wire fraud would turn every state court action into a rico claim federal court so it seems to me that the two of you are talking about completely different things he is saying that there's this fatal flaw in the alarms that it could not have been attached what's your answer to that where are the launch is a is a separate piece of paper at this point time so you agree you  agree that that was not attached we are saying it doesn't matter well what we're saying your honor is that the testimony that's before this court is that the the aligns itself is superfluous and the testimony before this court is that the the affidavit which testified to the a launch said it was a reproduction of a copy of the a line and no as in bank of america system it didn't say it was the original as in the vault further along anyway it was it's basically a super flu is document because we already had possession of the note we are ready had the assignment as because what we have is testimony before this court that b a c was the holder we actually have live testimony through depositions that was the holder we have life test molder of so we have maria gardner's testimony and she testified to the fact they were holding it on behalf of b a c b a c was also the person on the assignment and your honor you had it exactly right it was slander processing services which discusses the holder of the note or the assignee of the mortgage you need one or the other you don't need both but we had both in this instead one problem with that court case is i believe it is an appendix case regardless of whether you wanted and or or we had both so that whether the case you want to take it as persuasive or you want to take it as binding law the fact is we had both so if you want to look at the arguments of mr slope and say you needed to have both what we did so that's not a question before this court now there are others that's already besides the carcase for the idea that you just need one of the other well in this instance your honor we had both  mortgage or be the holder of the note is that a good case i believe so we had mrs hill miss hill had the authority to assign the assignment and murders in fact had the authority to execute the assigned me and murders had the ability to assign the mortgage despite the originating lender status i asked you to look at the terms of the mortgage itself mr slope signed it specifically allowed minors which brings us to our second major point which was mr slipper put forth no evidence of a rico claim you needed two or more predicate acts to create a pattern but this court has held that a rico claim predicated on a single victim with a single scheme for a single purpose is insufficient to create a pattern look to as a man a complaint we have a single mortgage we have a single assignment we have a single mortgage and we have a single borrower the evidence established that the purported pretty good acts were completely unrelated and there was no opened or closed and continuity so we move on to this issue of enterprise you need a purpose our relationship and longevity well look at the relationship itself this was a lawful contractual agreement between mergers and ls and lerner sampson office and bank of her b a c and this hill to allow her to execute the assignment for is what she did and for longevity you need a sufficient period of time well mr slope admits in his own m s j that this was but a short lived period of time so we don't have the longevity portion of an enterprise so finally we move on to a nexus over the proven that you don't have the enterprise and you don't have the pattern and the nexus requires a but for approximate causation well the fact the assignment was executed did not lead to his injury it was his decision not to make his mortgage payments which is what led to the foreclosure the parties were permitted to do what they did which leases to the injury well payment was sent to who he that he had to make a mortgage payment in the first place and it didn't cause him to fall behind in fact when asked what impact it had on him he said nothing life is great so in conclusion b a c was a legitimate mortgage and holder of the note we were able to enforce the no there was no evidence of a rico violation and changing one's claim in an amnesty is impermissible and not allowed because it smacks of countrywide home loan servicing they did a name change in to be a c ok then there was countrywide f s b they merged into bana then at a later time all of them merged up into  they are all at it jerry's point in time part of bana and in the earlier days they were subsidiaries they're off so they are all under the banner if that helps you out at this very good thank you good afternoon may please the court my name is rick blouses and i represent the defendant pelleas lerner sampson and rothfuss which you've heard referred to today as ellis are on occasion and shelley hill the very first thing i want to do with my limited time is to describe to the court one of the launches thank you and a launch is merely a piece of paper that contains an endorsement it was originally used because there were might have been multiple endorsements on the back of a promissory note and you were out a room so you a stapled another piece to it and continued to endorse it and that document is concerned called in a large and a launch and in this case so there are needed in this case there wasn't a launch need in this case but at some point somebody didn't know that because they hadn't seen the original note from the lot ok so in a launch is it says if i want to give you a check somebody has written to me a check and i want to make it payable to you because i owe you a debt so i i'm going to get the check but in the meantime i'm going to give you a promissory note this or not a note but a endorsement says i will assign this check over to you then i find the original check and guess what it already contains an endorsement on the back so i give you the original check and the a launch becomes in consequential because the endorsement was identical to the well in this case it wasn't in this case the a launch was in blank i'm sorry i misspoke the on the original note the last endorsement was in blank which makes it bear paper if you indorse the back of a check and you say pay to the order of and you leave a blank and i give you the check it's negotiable instrument it now becomes your money or whoever if you want to give it to judge sutton as long as it's in blank it is completely negotiable it's their paper room on the back of a note oftentimes you can find no endorsements on the note but in a launch stable to it that is very frequently the occurrence and commercial practice and so in this case there wasn't a launch now now now mr slurped says the foreclosure was fraudulent but then he says oh well maybe the foreclosure was ok but years later or much later during an at a motion for summary judgment on the foreclosure appears as it turns out this case was predicated and mr slope says his damages occurred and this court said if if if his damages would vanish if it turns out that bank of america was the proper mortgagee to bring the foreclosure what does that have to do with the a lodge that appears later in summary judgment proceedings which has as we've discussed is a supposed to perfectly his document the question is on the day the foreclosure was filed slope took out this mortgage loan the indisputable evidence is that b a c became the holder of the mortgage loan it's in the record it is the affidavit of susan magazine oh that was attached to bank of america's motion for  summary judgment which is document one twenty one dash one and it starts about paragraph five where susan magazine it testifies has not been disputed by any evidence in the case that they where this note went the original place in the vault the vault became the possession of b a c the note went into default that's what caused the foreclosure not some nefarious scheme among these  entities what caused the foreclosure indisputable is that mr slurped stopped making his mortgage payments the ac had possession of the know it was indorsed in blank bear paper they had the mortgage because ms hill on behalf of mers executed the assignment to be a c b s c brought the foreclosure it's exactly as this court said if you do not have damage as a result of the conduct of the defendants then you do not have standing to bring a case in this federal court he may have had damage but if the damage arose by his own fault and payments and not anything the defendants did thank you good afternoon your honors my name is david wallace i'm here on behalf of mortgage electronic registration systems and as noted by my colleagues this court's prior decision stated that if b a c was legitimate mortgagee than sorbs injury in its rico claim vanish stated a little bit differently if the assignment was not falsely executed to improperly foreclose on mr slurps property there is no rico claim here and the record established that merce properly signed the mortgage at the assignment of mortgage wasn't that that very same language that was in this work mortgage that was contained in others grants mergers powers that include the power to assign mortgages in addition shelly hill the person actually signed the assignment on behalf of mers as it's signing officer also had authority we put in the record the agreement for signing authority which gave her the authority generally and then the corporate resolution from mergers which specifically granted her powers including the power to assign mortgages so miss hill had the power and the authority to assign the mortgage here the fact that the original mortgage lender named in the mortgage had merged into a different entity doesn't make any difference courts across the country and we've cited several the cases in our brief have acknowledged that broad language in the mortgage grants that power to assign even in circumstances where the initial lender is defunct or if the successor lender hasn't specifically authorized in fact this court in the kumar case that we've described in dicta sort of suggested that that argument seemed dubious to at least that panel since the assignment was proper there's no factual release will basis for rico liability against based on the assignment of the mortgage there was no evidence of a conspiracy to draft a false assignment in this case there was no evidence of any predicate or criminal acts in this case and there was simply no evidence presented at all of any for false mortgage assignments that were used in other cases to wrong wrongfully obtain property through foreclosure so none of the issues and allegations that this court had to credit in the underlying case that this court heard before have ever been proven in fact as the court honor there's a little bit to unpack there but i'll start with the just rest on what we've argued in the briefs regarding merce shelly who was an authority ability to sign on behalf of mercer's a particular document that does give her some ability to sign on behalf of members but that that right there in the document after any further in the document says that she has the ability to act on behalf of b a c not on behalf of countrywide to transfer stuff over to be a c so so they're there you know they're confusing a little bit agency law there but flip it over you endorse it you just sign your name isn't blank and anybody can cash it similarly with notes and mortgages and notes is that at the end of the know there's a bunch of endorsements on it the presentation of this document to the trial court is important because it didn't have any endorsements on it it had no nothing on it so just like a check if it's made out to me i'm the one who can cash it without any endorsements nobody else can cash that thing so they recognise that problem the summary judgments coming along i have a document indorsed i can cash it i can and forces a plane if i need to get it over to somebody else i don't have the original document so let me manufacture a launch will stamp it on the back here now we're transferring it to the plane if the problem is under a high law that must be absolutely required to be attached physically attached to the original and we heard mr just classism it that it was not attached to it so why are they filing it and you've got a trial court judge who is receiving this document with an affidavit saying this is evidence and tash of the summary judgment in the depositions when or why and all and now they came out and now they come out with this new document that has three endorsements on the note itself saying all these things are always there so we always had standing to be there so if those three things were always on that document then why not present that back here in the logical conclusion for us is if they're willing to commit perjury and submitting a document to the trial court with this a launch then how can we trust them today that the endorsements are what they purport to judge is supposed to figure out perjury type thing i think well you know i think this is maybe this gets in a little bit of genuine issue material fact here what maybe there's a debate in me i don't think there's a debate between the two i would certainly appreciate you know we're looking at that from in the lens of perjury and this is frustrating for me as a practitioner of this all day long you know this is not something that is unique to this case for me i mean the aventura degree that we have evidence here is unique but this is this is i mean as a practitioner of this practice area this is what robo signing is all about this is why the banks are paying billions upon billions of dollars out and find just because of this stuff now one question that i believe was involved in this case was how did you seek to raise this matter did you seek to raise it by a motion to amend your complaint or did you seek to raise it by a response on summ judgment another good question first i think our complaint stands i think our complaint is in compassing enough it's pretty long that it encompasses the it certainly says they don't have standing to bring the complete bring the lawsuit at all our complaint we don't get into the specific allegations says this a launch was was false and the reason why we didn't get into it is because we didn't know about it until two thousand and sixteen a couple years after the it's so it's a new it's a matter and how did you try to raise it we didn't feel it was necessary in order to amend the complaint in order for this to be covered and quite frankly we felt like there was enough here already for the trial court to make a decision on on the merits and what did the district court say did the district court say that you should have raised it through a motion to amend or did the district court not address this or what is it to my recollection the district court did not say you should have raise a motion a man but rather  i know what the focus was on it was that the bank of america in the decision speaks for itself but i know the focus was on bank of america being the real party in interest through these three endorsements and even the t