morning your honors i was here on tuesday so i don't see any reason to repeat everything that you've already heard about most of these issues we appreciate that very much we were about to ask you what with the significant difference between the most fargo case and this one i don't believe there is any significant difference there in lima  there was a notice that said they were going to convey it by quitclaim which has been complained about but in this particular instance they ended up conveying it to buy a limited warranty dee so their advertisement their notice was certainly deceptive in that respect also there was a six month continuance but the principles it seems to me are absolutely say the other thing that i would suggest is that as the court noted tuesday rather than trying to find a crystal ball to predict what the why supreme court is going to do very soon with regard to these cases it would intermediate court issued a summary disposition order sustaining you know the decision of the circuit court judge and co i and the supreme court granted  obviously i can't get within the minds of the justices but i will note that the application for cert made the first and primary point that the a proposed reserve the rest of my time should i need it and thank you very much for your time i do so counsel or if you don't counsel i've asked this question of counsel on tuesday but it may have some bearing here particularly in regards to the attorney aspect of this but in hawaii practice when the whole why supreme court grants cert do they use that terminology grant certiorari or something else yes do they specify a question or questions that they will focus on in the review actually what they do is they go by the petition for  ironically they may have nothing to do with the case but they they will say that's what they're going to review and i understand your answer to be that in this case they don't specifically and i grab a lay out what they're going to decide but they simply whatever the petition is that they are granting whatever is accomplished within that petition is fair game for the court is that correct that's been my experience and that's my understanding now of course should they decide to decide something  very little i'd be able to do about it but that is the practice thank you sir can you be reserving there many your time i am thank you very well we'll hear from the other side morning your honour's bernie gar but for morgan lewis on behalf of the r and b s trustees i only have five minutes and i'm splitting with the other council so i listened to the arguments from wednesday and i'd like to address five issues that won't be was it was advertised by quickly indeed it was sold by quickly indeed but importantly it was sold to a third party better the chimneys so why is that important well it was postponed and yet a third party bitter attended it was advertised by quick claim and yet a third party that are attended so there was no chilling effect by both of the practices that the plaintiffs complained about interesting lee also gave both refused to vacate the property and the third party bidder the comment raises in my mind the question isis fictional your answer i'm sure about the other side it sounds like these cases are very much sui generous  there would be different it would be difficulty finding some commonality amongst all these like in a class action sense is that correct i think generally that's correct your honor interesting lee again this is brought as a class action so i think it's going to be very difficult for them to get their class certified but i disagree with counsel the facts of these cases in front of your honor's today are very different than the bald case as i said in cuba there was only one postponement it was only three weeks and a third party vitter if you're dealing with something quite general like unfair now if you talk about fraud i get you but what is there in the supreme court's jurisprudence or in the federal rules of civil procedure that would require someone to plead with the kind of facts and not just conclusions so for one example that it would make a difference here because the law whatever that was nice of you applied to the facts that are alleging the complaint here they claim they were damaged but they don't allege anything in the complaint about the market value of their home at the time that the foreclosure sale happened so they claim that there was a chill on bidding resulting in lower prices but they don't have anything in the complaint to back that up they also don't allege what there are indebtedness was in the complaint so it's feasible that the foreclosure auction could take place at a price that's below market yet these places are not even damaged unless you know that market value was a the amount of their indebtedness so that's one example of why the allegations in the complaint need to be able to you know if you believe that under your why and while you're in this case federal pleading law that those allegations are essential to show possibility yes i do to show that they've actually been damaged one of the elements of you that claims that they've been damaged and there's nothing in this complaint as currently alleged to indicate that they've been damaged at all i think your honor asked questions on tuesday says that when collateral sold to satisfy a debt it only requires that it be sold in a commercially reasonable manner and under six ten easy it says that the secured party that selling that collateral can specifically disclaim any warranties and the reason that's important in the situation like this is exactly what happened with the chins the chins one one the property at the at the auction and yet they had to turn around and evict debo one of the plaintiffs in this case and if we had given them a limited warranty deed we would have breached the covenant in that did i think one of the other points was the damages which i think sufficiently covered my fourth point was an etc talking about the role of an r and b yes trustee there is no motive to do the things that plaintiffs are alleging in their complaint there's no motive for an r and b s trustee to chill bidding like any other mortgage are motive is to try to maximize the sales price at a foreclosure auction because we're not in the business of trying to manage property or speculate we want as r b s straight trustees we want  their debts when they become do so that money can be passed on to the certificate holders and trusts and i would just say the last point that i was going to cover with respect to postponement which i know which will be addressed by hunt gate the trust ees don't feel that anyone here did anything wrong and we don't agree that you need to publish if there is a postponement but plaintiffs have made an allegation in their brief that says that whether or not postponements were published depended on which law firm was handling the foreclosure and i think to make a point that three out of the five law firms the did foreclosures in hawaii did publish postponements and i think what that shows is that it's not the trustees that are making the decision whether to postpone or not it's the law firms that are handling the foreclosure and again we don't think that the law requires that the postponement be published but in any event plaintiffs have conceded that these are practices of the for good and for the rosen defendants at this point everyone agrees that the proper course is for the court to defer decision making pending the decision in hong kong now while there are some differences between the hundred case and these federal cases and i'd like to talk about just one in particular today case doesn't vall the variation of the postponement claim as well as the three attorneys specific issues relating to trade or commerce consumer standing and common law rules limiting liabilities all of those issues are before the hawaii supreme court now coming to the one significant difference that i just like to talk about among many the hundred case involves a variation of the the postponement claim was alleged differently in these cases these federal complaints starting out with the commonality what they have in common all of these complaints allege that the mortgage terms required postpone by publication but the hung gate complaint goes further it alleges the number of postponements and on that basis alleges a huge claim for quote repeated postponements and if the court is repeated postponement allegations and so to me that just begs the question why the difference well i think it might have something to do with the fact that these federal complaints are styled as class actions class actions as judge smith pointed out you know it can't be sui generous you can't certify a class if it's individual eyes and facts specific and this postponement postponing multiple times issue is precisely that type of inquiry essentially asking us not before us now there's been no ruling by the district court as to why not to certify the class no your honor i'm just i'm just trying to explain why there might be a difference in the way that the two complaints well i should say the federal complaints here and the hunger complaint was styled why it was different in hungary it is not a class action so i think that explains the difference why the federal complaint is more limited in its allocation and this distinction in pleading could ultimately make a difference specifically while we believe differences in whether or not the district court should certify a class and as i say that issue is not presently before us but maybe i'm missing the point that you're trying to make he point i'm trying to make your honor is that the scope of the postponement claim in these federal cases is more narrow than it is in the hung it case here or simply an articulated well it's what's alleged your honor that's what the district court ruled on was allegations in the complaint so and correct me if i'm wrong why didn't the district court dismiss will leave to amend but the point of chose not to man that is correct and they had an opportunity to amend it so if they wanted to assert a broader postponement claim at that point they could have and in fact the attorneys who represent hung gate are the same attorneys here and so just one final point i passed my time but you are pestered time but this one is your point please counsel thank you if the we  affirm outright but it's possible that the white supreme court could conclude that the mortgage terms don't require postponement and that's the issue that presented here in the briefs publication i'm sorry i don't require publication this repeated postponement issue creates a factual question and so in that situation given the way that the pleading that the postponement claim was played in these federal complaints the district court's decision dismissing the postponement claim should be liability on the part of the lawyers should be analyzed one of the blair versus factors well if if we get to common law we don't believe the blair blair versus in was limited in the white supreme court case of bush or versus boning to the state cases i know they talked about that that was an estate planning function and we had lucas versus ham in california all that sort of thing but but the reality is did they say that blair could be used for anything else well they didn't your honor they didn't say it couldn't be used for anything else but they said that case was an estate planning context and they didn't they didn't go on to analyze the factors in bush versus boning they just cut it at that and in fact so you're saying that under no circumstances do those six factors and where play any role whatsoever in and how our analysis of whether the lawyers have liability we're saying that that case has been our position is that it's been limited but that even if you were to apply it the common law rule limiting attorney liability would preclude these claims particularly because it would create a conflict of interest between the attorney and his client i think you can thank you your honor mr perkin you have some reserved time use right well i think that there's enough and it's your perspective that what was planned is sufficient to show that the claim is plausible i believe so your honor and of course since i was one of the ones who drafted the complaint i guess i have a stake in that but the point is that also goes to the failure to a man and to take the district court up on its offer the judge didn't dismiss the case i think grounds that the pleading was in any way defective she dismissed the case of the grounds that there were no there was no cause of action based upon the foreclosure statute and therefore there would be no point to a man and we just have to tackle that that is a area where attorney liability has been found elsewhere it's a more common area but this is an evolving area of the law and with regard to this it does make a good point about the motive issue though that that was a concern that i had in reviewing all of your briefing because it does seem to me to resonate that the trustee in this instance has every incentive to maximize the amount of the bid and presumably would not engage in actions that it feels might result in a lower bid i would suggest to your honor that the trustee has the aim of maximizing the return not the bid and if for example if i see where that's inconsistent oh well if i could discourage me to get it out snap it up  credit bid it well below its market value and turn around and flip it for a great deal more then i want and where do i find that in your complaint i mean the problem is we don't know what the fair market value was for most of these properties at the time and if history is any teacher a lot of these activities occurred when the real estate market had taken a terrible nosedive so if if you're asking me to speculate i think i'm going to come out differently than from where you're coming how well i think that the point is at this point i don't motion to dismiss if we have played it adequately the rest is that should be trustee acted in the way that you a wedge that they have acted and that's i guess where i'm tripping up on your argument because i think it's more plausible that the trustee would want to try and maximize what it gets from the sale of the proper guess i'm kind of wondering because quite often there are there are alternatives and we talk more plausible less plausible if you have to plead something that  judge at first glance will find to be the most plausible that takes us even farther down the road i think it is plausible to believe that the trustee and we all know that they're the compensated based upon results the returns proportion of the trust to stay they have a motive a financial motive to bid if the property is is auction to a third party the most that the more e g he can get is its debt  plus costs anything else is the property of the mortgage or however if it's stead of having a third party sale there's a credit bid it goes  to the to the mortgage easy for less than the amount of the debt well that they can turn around and sell it for whatever price they want and no one else has a claim but where do i find those details in your complaint i mean that the problem is i don't know what the fair market value was you know what the amount of the bid was i don't know what the costs of the foreclosure action were i don't know what the outstanding indebtedness was to me there are more questions and answers well  your honor frankly faced with that i would say that if those details are necessary then that's exactly what i was talking about if it's a pleading problem then i think that we should be given to mr gave you the opportunity and your response to that is well i didn't really realize based on the way that she ruled that she was asking me for specific details of the nature that you and i have just been talking about but i mean you're the one who's bringing the lawsuit and the district court is saying i'm not sure you've got a cause of action here but i'm going to give you leave to a man to convince me otherwise and you say i think it would be futile to make any further amendments my complaint your honor what the district court said was you do not have a cause of action not that you need to flesh it out or i think that there's something more that i would need to be shown she just said flat out ok they complied with the part one of the foreclosure statute and that means they're there ok what do you think the district was contemplating when it give you leave to a man i mean i hear what you're saying if they just recorded saying under no stretch of the imagination do you have a viable cause of action then you're not and then you're up at the court of appeals trying to argue the contrary but i'm i'm curious as to why she gave you leave to a man it was my understanding it may have been wrong but i believe even by the phrasing  grant it was if we had other claims that we could pray and frankly at that point i didn't see any other claims that we could bring in part i'll just be quick isn't your problem here that the more details you put in your complaint the less likely that you can get a class action because then more possibility by detail and you got so generous issues  commonality to that play and you're thinking well actually we haven't we've all thought about it because obviously we brought it putative class action but as we get farther into it there have b cases that have gone to resolution in the state court not as class actions where the evidence provided  sufficient damages etc to make it make it feasible we don't know exactly where discovery will take us where fleshing this out will take us but i think we have and i should say i think the plaintiffs have a right to explore this and i don't think the case should have been sir very well thank you counsel the case just argued will be submitted for decision and the court will take a short recess