simple and i think the briefing reflects that essentially the position of the defendant is that because miss barnhart did not actually enter into the loan the subject mortgage loan herself that somehow or another she has no right to bring any comes from that you can argue that the violations of the deed of trust act constitute violations of other acts including the consumer protection act consistent with the freest only if you are only maintaining your c p a you're letting your letting the d t a claim go that's correct although we do also have a negligent and intentional misrepresentation claim as well now did you preserve your c p a argument in your brief yes roger that was that totality of what the argument was is that she can pursue that is because we did not because the court didn't did not say that we couldn't preserve her pretty me pursued the c p a claims because it was a light upon the walker decision and so for us only only got rid of the deed of trust act claims and in fact then was the same as walker and saying that you could pursue her pursue a c p a claim that part of it was we did not appeal that ruling because the court found that but for the to certify the questions to the state supreme court that's when the court came back and said no we're not going to because of walker under walker miss barnhart would be able to pursue her c p a claims even in light of there not being a completed nontraditional foreclosure but then just basically said it was dismissing the entirety of the claims because the standing issue so that's and that's what i said in the opening brief i was not arguing about the walker issues because i believe the court the district court ruled correctly on those but you didn't make an argument in the alternative along the lines of what the what the washington supreme court decided in frias that is that even if you if you didn't have a d t argument you would still have a c p argument well we did i did into that in your briefing in the original well no i guess because i was ok perhaps i'm incorrect but i thought the court's ruling when it said no walker applied and walker prefer would preserve the c p a claim but we're not going to dress that issue because the case is dismissed trust act can't be pursued based on any other legal theories and what the court district court said is ok and that's consistent with that portion of walker not the g t a portion of walker and so when the district court said look whether your appeal is directly at the t a a appeal or a c p a appeal it all comes down to whether there was a violation of the d t h because you're because either you're arguing the straight up d p a appeal or whether you can make a claim because of there was no it was no way for closure and the is gone to a judicial foreclosure those questions are are still at the core issues that we have to address is a right that's true and i'm sorry if i confused the court but that's why i kept the narrow focus in the briefing because it appeared to me that once the district court said that we could have pursued any of our the other claims  his partners who may have been correct or whatever but nonetheless with respect to the c t a claim he was wrong well i actually conceded that i said that he was and you not can you not claim that you are simply the owner of the property and therefore entitled to be treated sort of fairly and trying to figure out how to make the pay off to bring everything square on the books if yes if so in other words if i wasn't reliant nin another in order to in order to approve the d t claim you did have to be a borrower grantor do you still have to be a borrower grantor in order to maintain your c p a claim well i think you can certainly pursue a c p a claim just saying i have some interest in the property but because this case is all about the demands were made in connection with the non judicial foreclosure that is why the focus was on the requirements of the d the trust act as constituting as demonstrating what the errors were that she was complaining because this case was all about the amount of monies that were being demanded in order to preclude the foreclosure sale so that's why the focus has been and are in my briefing on the deed of trust act requirements because that is what is supporting the consumer protection act claims i guess she could in general file some claim that just says in general i think you're wrong but it still goes back to the requirements of the do trust act and what can be demanded in the context of a nontraditional foreclosure sell so i don't know how i could have pleaded the case on the consumer protection act based upon the consumer protection act that didn't deal with a deed of trust act acquirements since that's what it was or understand it and how that other related now i guess i'm still trying to get to the bottom line so in order to prevail on your c p a claim do you have to prove that your client was a borrower or a grant or or do you have to prove that she suffered some injury and think that she has to prove that she suffered some injury and but she doesn't have to suffer that injury in a capacity as a grant or a borrower i think she could suffer a in a capacity claim and the only question really before the court is whether the plaintive has preserved the c p a claim on appeal how could how could how could she have anticipated where the what the what the washington supreme court was going to do she doesn't need to all she needs to do is what any plaintive must do when appealing from dismissal of a complaint  that she has alleged all of the elements of the cause of action the seizing alleged all the facts which show she satisfies all the elements of a cause of action which she could do me the five elements are an unfair or deceptive act or practice occurring in trade or commerce that impacts the public interest injury to plaintiff's business or  property and the injury must be causally related to the unfair or deceptive act that comes from the hangman ridge training stables versus safeco title insurance company case of washington supreme court those elements were argued on the motion to dismiss and we contended below that they had not been met by this complain where did she fail were the allegations fail well in several respects first on the public interest this was just one a one on one affair with no greater impact and secondly on damage and causal relationship now in that regard it's well let me go back for a moment and that's just the problem with her appellate brief she doesn't scuffs any of that claim but she hasn't she never tried to show that she pled all those other elements and the one most obviously missing is damage i direct your attention to paragraphs it's really that the c p a claim is the second in her complaint it's paragraphs three point four through three point nine and three point nine is the only one that even comes close to me mentioning damage and it says that the defendants in gauged in a pattern and practice of violating excuse me the c all of these violations entitle plaintiff to damages that's the extent of it i think i thought there was some allegation about charging excessive fees well no not charging excessive fees including excessive fees in the reinstatement demand but she never paid the reinstatement some so she never incurred those damages if there were any have to show on appeal in the court didn't address these factors but the court did dispose of the matter oh absolutely it disposed of the matter and my point is that to show it to get a reversal on appeal you have to show prejudicial error if this case was properly dismissed for whatever reason you affirm and the plaintiff has not shown that it was not proper to dismiss the c p a claim on one of the grounds that the defendant advanced follow that's her burden on appeal she can't just say the trial court said the district court gave the wrong reasons for a correct result well we can affirm a any basis for it by the record that's true we don't have to oh i disagree your honor of course your honor there's very few if they don't raise an issue in  we don't have to invoke waiver every time we have separation are i that is true but is there any reason why you wouldn't impose a waiver here where it's clear that for example let's let's take negligent misrepresentation she also allege negligent misrepresentation apart from those two words have you heard anything about that claim either here or below in the briefing now you know why revive that claim  which was never brief the same is true the c p a claim it was never brief he and this is not something that was sprung on miss ules woman with great surprise she was counsel and for yes she knew what was coming down the road i mean not the ultimate result of course she she wasn't that prescient and neither my i don't know how this court's going to rule but she was certainly aware of the issues that were raised and the types of claims that could be made and she chose not to brief them  here and as i said the g t a claim is gone i think she's admitted that the only the only clinton that's up for consideration as a c p a claim and she hasn't told you where in her allegations she's alleged any damage to business or property that would support that claim and was caused by excuse me these  supposed supposedly excessive reinstatement demands that she never paid you're focusing on the damages element of the claim yet you saying that the cause of action the violation was a violation of the the only actually clean well of the common law class and she was vacillating here before you as to whether that was true or not i think but but ok let's say it's that's the violation to prove the violation it seems to me she would have to show that she's a borrower grant or but that doesn't get her a c p a claim that's just proving one element of a c p a claim the violation should i don't have to share all the other elements but i'm just wondering if that isn't at least one element that is on the on the table here for her as an obligation yes it is council i'm looking at i'm looking at free us page five thirty eight and here the  the court says without question where a plane actually loses title to a house in a foreclosure sale or actually remits foreclosure fees the plaintiff has suffered injury to his or her property and i would that would be the claim however those injuries are not necessary to state a c p a claim other business or property injuries might be caused when a lender or a trustee engages in an unfair or deceptive practice in the nontraditional foreclosure context why doesn't she qualify as part of that business or property injury  oh i got the allegation problem i got the waiver problem but in theory why couldn't why isn't why isn't she qualified why isn't her client qualified to assert an other injury as the owner of the property even if she's not  itself the damage yes the violation no there are two distinct elements to get a violation of the d t h she asked it seems to me prove she's a borrower or grand tour to prove damage yes damage can be broader than foreclosure and harm to an interest say of a junior league under your under your theory then you could never bring a c p a claim unless you were also qualified to bring a deep d t h claim you would just have a broader claim for damages is that correct is that your argument that well i mean there are loads of c p a claims that have nothing to do with i understand that but if  don't have anything else other than sort of you than something that relates to property that would qualify under the under the t s a well it seems to me you could still if you have a claim that that's related to a mortgage it doesn't have to be a violation of the d t a to violate the c p a in some circumstances i mean if for example you can invent circumstances where the practice is unfair or deceptive quite without respect to whether it violates the d t a and in those circumstances you're quite right so for example if if the lending institution  to the d t i judge ito if i believe just told me that that's what she'd done here so i'm not telling anything i'm asking well i'm sorry your honor far be it for me to put words the point is i think she may have claims about the c p a violations other than the d t a but she is definitely not preserve those on appeal because the only thing she's t a violation that she's argued about that's the most she can have on this appeal and she hasn't shown the rest of the elements of a c p a violation stemming from that the court has no further questions all sit down thank you very much so turning to your honor's question judge by me regarding for us the rest the further in the phrase opinions the court quite clearly says that even if there is money is demanded that are not paid that can constitute an injury under the consumer protection act and that was the basis of the freest decision counsel's correct it was my case and miss free as had not been foreclosed either she had not paid the fees and one of the arguments had been made is that the form that the argument took the case was certified questions from judge packman and it really turned on the first of all the question of whether or not a straight deed of trust act violation applied and then if it did not what other claims could you pursue based upon  perhaps i'm wrong and if so i guess we're going to but i looked at it as the court not even ruling on that issue except to the extent that it said walker applied and i conceded in my briefing to this court that i agreed with the court's the district court's analysis regarding the input ability of walker and that walker would allow those claims to survive and i was not appealing that part of the decision and that's how i looked at the order when i was doing my briefing i looked at the order and thought that was the the proper way to interpret  let the clerk know that the clock was not counting down and so i apologize to the court i mean that was how i looked at it which is why i wrote my brief the way i did and only looked at whether or not the allowed the standing issue because i looked at the district court's order is really not focusing on anything else except just saying standing guided everything even the negligence going through the common law yes your honor all that's not is important i before us and those are in essence is probably not your honor now so but turning to the question the court's questions regarding the put ability of the consumer protection act the frias case makes clear that violations of the constitute an unfair deceptive act or practice that it does occur in trade and commerce and that there is a public interest impact when it's part of a business model an injury to plaintiff and as we just talked about a moment ago that can be injury or damage and so free as makes clear that even if monies are demanded and you don't have to pay that that can be an injury in this case we also had a motion for temporary restraining order which the court in the state court before the scott to the district court where miss barnhart testified regarding the attorneys fees that she incurred in obtaining that agenta relief not as part of the record at e r thirty three through ninety seven so she had testified regarding you know out of pocket expenses that she incurred in investigating the claims in pursuing the injunctive relief and the that issue was addressed and walker where the court said investigative costs can be recoverable and then we have the cause of element  on the c p a claim and at the end of the day this is the causation is quite clear the defendants demanded money from her she attempted to pay she questioned whether or not they were accurate tried to get correct information we outlined with specificity in the complaint the problems with the conflicting representations and the ever increasing dollar amounts and made it and it's quite clear that those dollar amounts were being inflated improperly there was also those claims and again when i went back to the court order of the just a court order the court just ignored it at all and really just focus on standing and that's why i did my my brief on that and relied upon the court's reliance on walker to century say that other cla s were preserved but it didn't matter because my client didn't have standing and that's why the focus was on the borrower grabbed her relationship as well as the owner relationship did the court have other questions  the money to pay but nothing's happened with us literally been stalled no no judicial foreclosures been instituted our position of this wasn't substantially briefed our position is that you know she recorded the quick claimed that was a way of that was signed by her mother when her mother was alive and  was a means of preserving having to go through probate but at the end of the day we think really the case the matter comes down to we have a case where somebody owns a piece of property and gets it from whoever leaves it to them and owns that property and therefore has an interest in that property and it's going to be deprived of that property if they don't pay the amounts to match it and we maintain that the amounts to be handed here were greatly inflated and that she had the right to contest it under the plain language of the deed of trust act and that she had standing to pursue her claims ok thank you very much thank you matters