and thank you for yesterday's notice that you had something on your mind on the surf occasion and i do i very much appreciate getting something like that in advance rather than directly from the bench and let me come back to that in  detail and the fact that we have no difficulty with certification if the court deems it appropriate but first i just want to make sure that the court fully understands there was no obligation on spooner spooner lid off and her partner eleanor mitchell and no rive the bank to put them through underwriting to lower the rate and perm the loan and then put them into foreclosure for not qualifying for a new product when they had the best product they could possibly have ever gotten and wanted to keep it that is the essence of the breach of contract and because there's an essence of a breach or contract on the loan documents themselves there's no reason or need to reach the statute of frauds issue it's an interesting issue i'm sure the supreme court would love to take a look at it but i don't think that's necessary here in order to give relief to my client so you think your client could get all the relief she wants just based on those two statutory two contractual claims is a career that that's what we believe yes so what did the district court say about those two claims it didn't it really did not say anything about that it said that they were subsumed in the separate sale claim and so you've read the court's order and you've read  briefing we think that that was a mistake by the court because that really was a separate distinct claim it was laid out in the response brief there is plenty of information supporting the damages and the other issues that came along with  expressed some concern about what damages might be available if it was for the rate was that for the rate well i think what the court was concerned with is ok suppose you get to a and of course we're speculating little but let's let's do that suppose we get to a breach of contract based on a failure to provide the lower rate and perm up the loan then what you still have to have these houses but you had an eleven year interest only loan that would have expired at the end of september twenty seventeen just a few months ago that's a long time to be paying interest only and to be able to have rent remember these are two completed town houses in an emerging part of c l the judge gould is probably very familiar with the cd i'm sure you're familiar with that area and that that is a turning neighborhood this woman and her friend they were just a couple of ladies trying to take advantage of that situation and provide for their families that's what they were doing she had fire she has fibromyalgia she couldn't do work in the normal way this was her way of taking care of her family it's all in the record and i do commend to you because as i was mentioning to mr chancellor on the walk over there are times when we all get through a case we get caught up in the legal issues and we forget to look at some of the underlying materials i would commend to you and i think this may be have been part of judge who now is problem your honor that a couple of attachments to declaration it's not in the declaration but their attachments to it so that she certainly told all the inferences from them and i would appoint you to e r one ninety five to one ninety seven which is her long december and two two thousand and nine email to the bank of america complaining by about the fact that they had revoked their line of credit on her house with her and her husband because of the problems with sun trust and  her it was not it was not so she had with her husband as a separate matter one of those things that would cause problems she end up living in the house just so i can focus your little bit more if you were to prevail on the two contractual claims the failure of the t and the rate right what would be the damages that you would be seeking we would be seeking the damages for foreclosure for losing the house and the opportunity to rent them out and then sell them when you could when the market so that would be substantial damages your honor ok and some of those damages are that the reason i'm pointing to these is those kinds of points were attached to her declaration in the original summary judgment papers and they are they lay out what some of the damages were both the we sometimes as lawyers and judges we get involved in the legal issues they're interesting we want to find out what's going on with them but we have to go back to some of the basic facts those facts were there there was no argument no opportunity for mr lien to raise those and  and have judge cohen our address that was that way so on the what about on the question we posed to you well as i said your honor i think it would be an interesting it would be an interesting issue for the supreme court  nice for them to address that i think they would be very sympathetic to her case i think it does meet the compelling situation because of you've got an oral representation that you can sell these separately and in you really almost have an impossibility a contractual and possibility here years to develop to town houses it's all the done before they even approve the loan you had to get the divided they had to get the financing or they were getting the fines they had to get the lot divided they had to know they could get that from the city and they had to get their contractors and their attacks lined up all that was done by people who'd never even built a shack before they went and did this then you have the whole project that they went through removing hazardous waste getting the the town houses approved and they're told at the time that you're going to be able to sell these separately if you have to now it may be that the bank just pulled off of their shelf the wrong documents the residential documents instead of commercial because commercial documents typically are going to allow you to sell seriatim when you've finished your development you can do that that's contemplated in a commercial development this is all residential which is one of the reasons we say that the commercial credit agreement that we wouldn't disagree with you on that argument wouldn't the crew to the credit agreement statute of frauds preclude this particular  it might preclude that particular claim but it wouldn't preclude the claim that would allow miss le duff to hold onto the houses and sell them when they were ready or sell them when she could get a joint sale at the same time and part of the problem of course is there was a huge depression in the housing market in two thousand and nine as we all know it didn't come back for a long time if she could hold on to those houses and it's in the record she had a settlement from ellen i have two hundred forty five thousand dollars she could have paid that she could have made those payments there's no reason she couldn't have held on to those lived in one rented the other that was was fully available i see i've got about seven minutes left unless there's some other questions from that i just have this question i think it's already been asked but to make sure i've got this clear in mind you say that if we if we were to on the statute of frauds issue and it was not your position but if we were to do that but to reverse the permanent financing and rate issues that your clients could well have a chance to recover all their damages i might want to consult my  reaction is yes i think you they would she would be able to put in consequential damages and put in her case to allow her to get full recovery  because i know that's what you want to hear about i want to clear up one misconception there's no claim for perming up the loan the terms perming up the loan when she took out the loan it was a thirty year promissory note there was no in that had to occur she had two options underneath the loan documents she could either modify the loan at the close of construction which would require her to refight or to requalify or she could exercise the rate option which she could lower her interest rate but that would require that she not be in default and before that time arose she had to construction liens against the property which were events of default and then in july of two thousand and nine the construction was done in may of two thousand and nine she defaulted on making the payments she disputes those liens that they were valid and that may be the case but that clearly a leader might travel issue of fact on the glee at this point your honor may be difficult to do that so that's a whole nother question nevertheless there was definitely these events of the fault that it occurred i think the important part was is that at the time that all of this was going on and even throughout the first part of the case the discussion was about the ability to sell the property separately which would clearly require a modification of the documents because the documents themselves did not allow for separate that primarily because we think that issue is squarely addressed by the credit agreement statute of frauds which clearly in this situation and expressly in the statute says if it's not in the written loan documents it's not enforce he's no longer with the back no your honor he left working for sun trust bank very shortly after this loan arose in two thousand and six he's out of florida passed under the statute of limitations the misrepresentation would have occurred in two thousand and six she was clearly aware by two thousand and nine that this had occurred she couldn't sell them separately and the underlying lawsuit i believe was provision so judge didn't believe it was necessary and i think the judge got the decision correct the general statute of frauds specifically says that a contract that is not in writing shall be void so it leaves room for arguments like the promissory estoppel or stoppel argument in contrast the credit agreement statute of frauds which was passed separately from the general statute of frauds is very specific and says it shall be determined the agreement of the obligations of the parties shall be determined solely from the written agreement and any prior contemporary dance oral agreements between the parties and if any of those prior agreements are decisions may not to there was actually a nother case from the washington appellate court the third division harwood what versus wells fargo bank where they looked at whether the promissory estoppel would defeat the real estate statute of frauds and then they turned  completely not citing the cal its case and said in any event this claim is governed by the credit agreement statute of frauds and rejected a promissory estoppel claim and i think what's important in your honor may i approach that's ok ok what i want to try to convince the panel is that this is an area where the law is well developed by judge kuhn our felt like and it's not necessary to certify the question to the washington supreme court and you've got the cal it's case that is clearly from the second division cal it has been cited by a least two first division cases not necessarily on promissory estoppel but for rejecting oral representations contrary to the written documents under the credit agreement statute of frauds i think there was a case by the washing springs supreme court called for that to deal with this with the exceptions to the statute of fraud in the real estates in the in the first case your honor if i recall correctly it didn't first of all didn't deal with the credit agreement structured fraud or all and the question there was whether that contract fell within the real estate statute of frauds and that was a situation where somebody was buying they weren't buying real estate they were buying stock in a company that held real estate and the washing supreme court said it doesn't fall within the four corners of the real estate statute  frauds so it didn't it didn't find an exception to the real state statute fraud just found that it didn't apply at all here there's no question and i know that they've raised this issue but i'll address it there's no question that the loan documents fall within the credit agreement statute of frauds and let me turn to that issue because this is another issue that was raised on appeal but it was never raised to the court to the court below to the district court below and when we originally moved for summary judgment we argued that the credit agreement stature frauds applied that based on her application and her actual deposition testimony where she said it was for investment purposes and the language of the document it clearly was a commercial or investment loan that fell within the credit agreement statute of frauds on appeal mr miller's raise the question of whether it's not at first what he did was he pointed to a provision in the loan document paragraph six that required you to occupy the premises as your principal residence what he forgot was the wonder for family right or that specifically eliminates the requirement to occupy it as your personal residence and takes a security interest on any rents and requires you to have a receiver if necessary it takes the loan and turns it into what its purpose was and that is as an investment and commercial loan and that's what it was these were two friends that came together in a joint venture and they specifically bought it for investment for resale and it was a commercial loan for that purpose getting back to the question of certification we don't believe that it's necessary to certify the case on this issue we think that the other reason why is because this was an issue that was raised ruled upon and never raised again on appeal it was an abandoned issue so what this court would be doing would be essentially certifying resurrecting in abandon issue simply to certify it to the washington supreme court and we think the law on this is sufficiently developed for that purpose let me address the issue real quickly about the rental claim and i think that that gets kind of conflated with this failure to it was a permanent loan it was a thirty year note when earlier in the case there language that would be used as you failed to perm the loan but nobody would ever explain what does that mean and what the ramifications go to question on that if that's your when the case was originally filed in the complaint most of the paragraphs the most the allegations deal with this inability to sell sell the two products separately there is a single line almost on us as a side that said you didn't give me the interest rate but there was no damages that flowed from that following that we received a demand letter from former counsel for miss le duff that outlined her damages and it was all arising out of the inability to sell the property separately at her deposition i put the letter in front of her and i said mrs le duff is there anything else i need to know about other than what's in this demand letter and she said no i think that's it so when we moved for summary judgment it was about the separate slots sale claim the failure to be able to get an interest rate reduction that prohibited her from renting the properties and holding on to them had never been articulated anywhere when the court ruled originally on the summary judgment motion it said while she is identified this is an issue she hasn't identified what the ramifications are from it specifically in her reply brief her counsel said we didn't get the rate reduction we coulda rented but cites to a declaration paragraph one thousand of her declaration as the evidence for the ramifications for that the problem is if you go to our declaration it describes the separate sale claim it doesn't describe anything with regard to the ability to hold onto the properties and sell it then mr miller mr le duff like over former counsel mr miller step in he filed his motion for reconsideration originally he submitted an affidavit a declaration from miss le duff but again it didn't identify any evidence that she could or rented it and held on to it we filed our response to his motion can for reconsideration and then he filed a reply to the motion for reconsideration which is the first time that he submitted any evidence indicating that she could have rented the property out and held on to would intil the market improved and then she could have sold it the other thing that we need to realize too is during some of this she did rent the property out ok on that last now you finally articulated at an independent damages but it's not the place to do that on a reply brief on a motion for reconsideration that's inappropriate at that point in time and we would submit your honor that's the same ruling that you should hold hold as well  we didn't have the opportunity conduct discovery on that claim because it just wasn't a claim in that case it was all about the separate sales throughout the summary judgment hearing to think you are if the court has any other questions your honor i but summary we believe that the court can be affirmed and that this is not the case to be certifying to the supreme washing supreme court on this issue because we do think that the law like judge who now or has been sufficiently developed thank you judge you know when you're the advocate you never have enough time judges control time to some extent i'll try and be as succinctly as i can judge has first perm was an issue and although there briefings as  agree was a permanent loan for thirty years look at the twenty seven the july nine twenty two thousand and six e mail from ms pac it's quoted at pages twenty six and twenty seven of the opening brief the reason i requested documentation from you in the first place was to try and get a you a lower interest rate which is what you said you needed in order to change the loan program or update fund or rate updated financials are required by underwriting she is saying right there that perm is an issue they refused to do that they were saying it's that you know she's confused about what the product is europe opponent they're just up and said well this was a thirty year low what i'm saying is that's what they're saying their briefs and the documents do not agree and that's why it was part of the case and it was part of the case from the beginning and so was the interest rate if you look at that e r five seventy eight which is the complaint paragraph two point twelve we're talking about refused to negotiate the interest rate is provided for in the loan agreement that was part of the case from the beginning it's in the response brief that was filed by mr lane it was clearly in the record before the court in terms of what arguments were or were not raised i will point out to the court that the bank raised the exception to their credit agreement statute of frauds in its reply brief at c r one twenty seven line twenty three says the agreement is not exempt under one nine hundred thirty six one twenty that statutes in play that statute is in play and there's no reason it can't be addressed there are a number of reasons and compelling reasons why this washing supreme court if they were to look at it i think would find that there would be an exception an equitable exception some trust changed the deal they refused to change the interest rate they refused to treat the one loan that would convert automatically as a perm and they intended to do they intended to deal with a deal to be personal by using residential forms throughout that's kind of unusual if this is really a commercial deal that they use residential forms route why would they do that well in a changing neighborhood and guess what they can sell it on the after market this is the time of the mortgage backed securities back in the mid two thousand and first decade of the two thousands the liens when he addressed the liens very briefly judged by as you're right they were disputed by ms rouer le duff we did not add any extra documentation on reconsideration because the normal rule is you can't can't add new evidence but the bank did the bank brought up the liens the first time ever they never say in any of their contemporaneous documents that lien problem was a reason that they were put into fault they said you didn't qualify for the new program that is a false issue it's a completely bogus issue but also i would let the court know that suntrust did not object to the new documents when they came in and the new evidence we didn't object to theirs they didn't object to arse it's all before the court and we've brief that the court should try and get to the right decision separate sale only arose after they put her in default it was not an issue at the time in two thousand and nine until they said we want you we're going to put you into default judge fisher you talked about the fraud and far the misrepresentation in fact that is essentially part of the c p a claim which is a four year statute of limitations and so it is part of this case and it would be if it went forward something that would be this is a very clean clear breach of contract case let me give you an example of why we think this is kind of why this has to be addressed and you can address it here their theory is that they can make a borrower ask for a rate reduction that their entire to one of the contract and then put them in line for a new product deny them and then say ok you lose why if i have if any of us have a thirty year mortgage at five percent and the rates go down to three and a half five years later and we want to refile for whatever reason we don't qualify do we then lose our thirty year five percent mortgage if we don't qualify for the three and a half percent that's what they're doing that's what they're doing here that's the logic behind what they're what their process was they took this couple  hundred fifty thousand dollars each they're much higher now and they're saying that oh sorry we can't help you you know you're not going to honor our loan what's striking about this when i've talked to other people and i tell them what the circumstance of the case are they're incredulous they're incredulous you say what the the borrower made every payment for two and a half years on time every single one she had to write the checks and they did that and then they get  faulted why there's no explanation and that's why this has to be reversed and it goes back and we think that whether you believe that it's better sent to the washroom supreme court we think