don't believe that case controls here for two reasons one the factual predicate of that case is contradicted by the record before the court the key finding on which the court concluded that did macaw would not preempt and statute is found to page nine sixty nine of the wells fargo decision for nine hundred thirty nine sixty nine that point and i'm just going to cite the the one particular portion but it said banks were free to alter the post record ation rate of interest to account for any pre recreation no interest period thereby collecting the same total amount of interest as they would have collected had they charged interest record ation or in excuse me interest free recreation the record before this court contradicts that assumption i would point the court to mr mcginnis his declaration which is at the excerpts of record page fifty nine paragraph seven because quicken loans has no way to predict the delay quicken loans is unable to compensate for interest charges it would lose under the protium restriction charging higher rates of interest on loans the corresponding to the lost interest i would also point the court to the commissioner's response to quicken loans statement of undisputed facts in response to quicken loans assertion that it could not compensate for lost record ation interest the commissioner merely stated that it lacked sufficient information to admit or deny and therefore was denying on that basis but the commissioner submitted no evidence to contradict the evidence that was before the court so the key underpinning of that decision and the if this wasn't before the court and in wells fargo boot versus boot first but it is here and the record here shows that there is no ability for the lender to make up for lost free record asian interest the other thing that wasn't before the court in wells fargo versus butros is the parity act in other words  assumed there that the lender had a means of making up for the lost interest but the parity act wasn't before in here one of the key arguments that quicken loans is making is that in fact it's precluded bookended here quicken loans has no ability to anticipate and therefore make up for the lost interest and then at the back end it has no ability to adjust the amounts of payments or the interest rates lose two million dollars by that we can't get an interest for this period if we're going to adjust our interest create in general so that will recoup that two men have been in charge a higher interest rate in effect because then you're then you're depriving the state chartered lenders of the parity that the parity act the shares that you're saying they have to charge a higher interest rate than the federally chartered lenders so i think your your question phyllis traits are very point but the side that they would have to essentially anticipate what the amount of the recording delays would be the evidence before the district court is we have no way of doing that that was the evidence that was presented and again it was on contradicted by a done i think i answered your your honour's question but in effect the only way you were trying to do some allocation is you have to set a higher interest rate and that's the very evil that congress was trying to avoid or one of the evils that they were trying to avoid with the parity act was to make sure that state chartered housing lenders are honest on equal footing with federally chartered housing wonders the other point that i want because it was necessary to define the scope of the injunctive relief for the court but the first ruling that the court made there was that the commissioner had no right to prosecute the case to to enforce the regulations therefore the injunction was you can't enforce any regulations or laws against the slander going on in ruling on the subsidiary point which is aside from the fact you can't enforce any regulations or laws you also can't reform enforce the specific law i think was unnecessary that merely goes to the fact that with the court accept my argument is it already balance is it already bound by the earlier panel's decision or position is a stick then again there's a key facts setting apart  finally i want to mention the that in wells fargo the court took on the the the phrase expression limiting interest and i think that was also an key issue in the court's reasoning which is finding that the protium statute did not expressly limit interest and i would ask the court or invite the court to closely read that analysis because it only focuses on expressing limits of the rate of interest and again has the analytical i think flaw that the total amount of interest can be made up on the back end of the loan the next i'd like to address the right mr issue on the takings claim  i want to clarify that quicken loans is not the serving that this court should address this on the merits because it was never addressed on the merits by the district court the commissioner's position goes on at length about the district court examined the decision as to whether the quicken loans license would be revoked and questioned counsel to a sponsor or whether or not the decision to revoke the license was final well the decision that's a issue here is the decision that orders quicken loans to refund the money that decision was final the commissioner admitted that it was final concedes it's final the final decision can be found at the excerpts of record page sixty where where the commissioner orders quicken loans to refund the interest the other issue that the district court erred on was assuming the quicken loans had to prove the exact amount of money that would be taken which because this is a case challenging that it's not the taking for a public purpose the case law of this court is we don't have to prove the exact amount of the interest and the washington legal foundation it was washington legal foundation case made it clear that the exact amount of interest does not need to be shown in order for the case to be right nor do you have to exhaust the state's law procedures for obtaining compensation when you're essentially challenging the legitimacy of any taking the question here is not compensation at the threshold it's whether or not a taking can be done at all with that your honor i would like to reserve my remaining time unless the court has any questions  bank act decision the bank act question the decision simply said that that we should not have the tauriel powers and regulatory powers under the financial code that did not directly address the civil code section which is a companion it here but i would like to point out to the court that the extent to which the commissioner has taken action in this case are indeed letters that are in the record making certain demands under the statute but also to his fallen all of which have not yet taken place and in fact there has been no decision rendered under the strict procedure act by the office for ministry of hearings there has been no decision of the commissioner either confirming or denying any such life alone etc and we can't do that we can't make a factual germination because quicken won't do the audit and that's their decision so the fact that the case may not be ripe as to that issue or cannot be determined on the merits is actually the fault if you will of taken out of the commission is a statutory scheme which was developed for and acted in the context of the perceived need by congress to expand the extent of alternative mortgages available in the mortgage market laws and the issue is what's extent of creating preemption is necessary to effect the intent of the parity act alternative mortgage transaction lenders and it cited for today as you said your day there are only two and they are adjustments for break regs regarding adjustments and regulations regarding disclosure govern adjustments if it complies with the federal regulation regarding disclosures it is entitled to preemption from state laws to purport to regulate that's what it needs to have parity with federal thank you i've heard think i've heard the commissioners council kind of try to undermine the notion that it really made a final decision so i would point the court to the transcript of the proceedings below in which the matter was left with no ambiguity page five hundred forty the excerpts of record which is the transcript where the court asked mr voting whether or not there had been a final decision and his response was i think this is one issue upon which we actually agree with the plaintiffs in so far as that the commissioner has made a decision communicated that to the plaintiffs with regard to how he intends to interpret the statute and what action is requested and required or required of quicken required to do it so just as the statute was final in the ordinance in san francisco was final in the sand remote case and taking was affected the decision was final upon that and that comment of the decision so they didn't have to go through the whole proceedings it's merely final once the rule is an act that the same with the washington legal foundation case once the statute that requires the action isn't acted that's fine here what was different is the statutes on their face don't require what the commissioner asserted and it was then the commissioner who said closing of the transaction means the date the recorder stamps the document and says it's recorded and it was when they said that's what you must do that's what you must comply with or else your license will be revoked that's when the decision became final and in fact the revocation decision  that for the quarter the accusation that's in the record makes it clear that the license is in the process of being revoked because of the noncompliance with that final decision so to come here now and say well the decision really wasn't final is the opposite of what the commissioner and i don't know if this is in the record or not but just by way of information it's been by agreement of the commissioner and quicken loans stated or put on hold pending the outcome here since the outcome here obviously will determine what quicken loans rights are in terms of the parity act and the taking but understand remote and under washington legal foundation we don't have to have our license revoked in order to have a final decision and that's in effect what the commissioner saying is you have to go through in order to challenge this and have a final decision you have to let your license get revoked or else you have to you have to comply with what we believe is an unconstitutional taking for a private purpose quicken loans is entitle to have an adjudication of whether the quote the taking is appropriate in the first instance whether there is a public purpose before it's required to comply or have its license revoked so  e problem with the like to to respond briefly to council's arguments regarding the adjustments to the problem is that the adjustments contemplated and wells fargo would not comply with twelve c five sixty point three five that just wouldn't comply with that there's no way to do it the commissioner has never been able to articulate how that could be done and in fact you can't it's simply a matter of mathematics  council so that there are only two regulations that are a clickable at this point under the o t s regulations will one of those two regulations is the one that we're we're here arguing under which is five sixty point three five so the fact that it's been narrowed down to two regulations is really of not great importance but even so the recent rulemaking in two thousand and two several parties requested the o t s to limit the scope of preemption just to those two specific regulations and the o t s didn't do that in fact it was cited in its regulatory final rule an earlier opinion which should make clear that preemption is not limited here is not about taking or charging far worst interest on money they don't have what we're talking about here is a situation which quicken loans is being compelled to make an interest free loan to  money and not charge it interest through no fault of quicken loans own and because of things that are totally outside quicken loans control we have here a legislative finding in which the state legislature acknowledged that their recorders offices were backed up by weeks at a time meaning everybody does everything to close this loan the borrower gets his money the borrower goes out and can do whatever he wants with it and the recorder's office is weeks that's nothing that quicken loans has any control over and because of that we're in the kind of the crazy situation saying well because the recorder's office is behind we're going to make quick loans make an interest free loan and that's i mean there's no no equity to that and that's not what what they were i could say it's unfair it is unfair but more importantly the california legislature stated when it amended the statute this is not what we intended this is not what we intended to have happen we thought that the money wouldn't be dispersed until the loan was recorded that's just not what happened so  secondly the commissioner was of the opinion that had the department known when quicken applied license that it believed itself preempted from some laws that a license would not have been issued in the first place and that different than the commissioner saying it's quickens position when applying for a california license must tell the commissioner oh by the way we think this particular california statute is preempted by federal law i believe your honor that is the issue that we have raised to be determined by the office and ministry of hearings and then confirmed winter night by the commission under the a p a yes i believe that if an entity applies for a license but but of the opinion and of the intent to refuse to comply with certain provisions under it that is a basis for denial of a license in the first place and so many of the votes is there that they would refuse to comply they have done determination that they didn't have to and that's why we have agreed to stay and several times postpone the final hearing of that i can say sure because we understand that's a conundrum and it's a rock and a hard place and that the logical incentive for the lender to slee and promptly complete all the steps necessary for i don't think there was anything before the wells fargo board said that the consumers was heaving the funds and that they didn't have to pay interest after they received if the question i think if it was before the wells fargo of course was whether when the money was tied up and nobody had a tooth it would be could they charge recognition as interpret by the commissioner recover its interests are in some way in violation of plastic sequence three five there's no authority cited for the proposition the five sixteen point three five applies to this kind of adjustment or this kind of situation the statute itself than the amount of traffic going through the office and how many people they have running the recording assembly line right i think we are with because about apples and oranges here though because the adjustment escrow and there they borrow it didn't have any opportunity to use it and shouldn't be charged interest and somebody had done fairly pay you know either the lender or the borrower was going to get stuck with the cost of while it was a mask but i really don't think it's when as we described the statute there it wasn't that he couldn't charge interest when the borrower already had the money simply because somebody why who bears the risk when the borrower has the money and is using it simply because somebody hasn't filed something and if you properly to resolve that is to create an incentive for the lender to move the process forward because it is it is it is within the ultimate them not pay interest when they do have the money the legislature made a decision at the time that initially not going to statute prior to amendment that it would choose a bright line over which the lender had some element of control by trying to move the process forward as fast as possible the