out because we supposedly could not live link our breach of contract claim to a specific provision in the contract and so we had all these implied contract they do the hot is based off of the language of the contract so everything springs out of the contract and if they breach the contract in terms of allocation then they report wrongly and that's where if they reported correctly  compounded it and then they didn't tell anybody and that resulted in my client's permanently losing her or being damaged because the statute of limitations runs went by and this was all done without her knowledge and indeed none of the people this was done yet you know because flag started tell anybody and it should have been we the district or it was wrong when it said that we did not  case there are a number of cases which all that the violation of the federal statute even if it does not itself have a cause of action behind it or even if the congress has not that is that obligates flagstone than what you end up with is a breach of contract which leads to damages and that's where you get you don't even really need to have the whole question of whether or not the issuance of the form one thousand and ninety eight is the linchpin of the cause of action the linchpin of the cause of action is the breach of contract in the allocation in the st instance of the payment from the sale which should have been allocated according to that formula and were not and indeed when it's true gallup asked for the form one thousand and ninety eight in two thousand and fourteen they told her specifically no you didn't pay any there's no scheduling order no trial date no discovery rule twenty six disclosures hadn't been exchanged the court itself recognise that if that there was no bad faith on our part that was a finding specific which right on point as soon as you discover an error you're supposed to promptly i mean within thirty days issue corrected forms and ninety eight flags started on not everything would have been fixed they chose not to because they didn't want to open the hornet's nest which would have  as if they had issued all sorts of corrected forms to ninety eight dollars people then would have had to pay substantial additional taxes because they had reported their interest because flag star had over reported it to them then once they decided well we're not going to tell anybody then they started this retroactive program of trying to fix in one year what they blew it another and this court itself has issued an opinion saying end of the guna case say you can't do that each tax has its own universe you can start borrowing from peter to pay paul in this way and it's the also the lack of disclosure the flag star could have said to everybody we're going to do this we're going to make up your interest under their economics of and so what they did was concealment they did it for their own benefit they did it to avoid i r s penalties they did it to avoid negative press and so they knew you know sure we can see you now so thank you your utter good afternoon your honor it may please the court before i turn to the substance of plaintiff's claims i'd like to start by addressing the issue of standing the district court found standing based solely on a payment of seven hundred and fifty dollars that plaintiff made to our accountant more than two years after this case began and we think that that payment is not sufficient to establish standing because it cannot be fairly traced on that issue what judge data was said is that it was insufficient should just say that the deductions would have been more valuable in two thousand and twelve than they were in two thousand and seven to two thousand ted if you needed you had she had the numbers you could show whether or not you get a different tax bracket problem well but when she amended the complaint for the purpose of providing that calculation the time period that she needed to come to two thousand and seven to two thousand and ten what she did for two thousand and seven conceded that there was no difference and so she didn't lose any money because of that deduction for two thousand a gave the numbers from the taxes but didn't actually allege anything about whether the deduction was more or less valuable then for two thousand nine  dollars that the deduction she took in two thousand and nine would have been more valuable by eight hundred and forty three dollars in two thousand and twelve and in two thousand and ten she said nothing about the complaint so for the four years we don't have a calculation actually substantiate the broader conclusory allegation that it would have been worth more and even after given another chance and knowing the judge down a lot of that calculation she said nothing about two of the years conceded no change for one year and live in limits eight hundred and forty three dollars i don't think she can pick and choose one single year from the four because what happens is what it is because the actual injury she's alleging is an injury based on the amount of the deduction she took in two thousand and twelve and the you know it would be frankly a revolutionary change to the contract law to say that you can assert a breach of contract based on any provision of federal law and i think it's telling they say they cite this broad of construction about you read contracts against the backdrop of a law and then do that again in that it's been around for a century and yet they identify no case in which a court allows them to do is start a breach of contract claim based on an implicit term a ways or frog blame does turn on the ambiguity because really they're they're claiming that flag star had a duty to disclose that they had made a mistake  improper to try to to make changes to back dated but that's not what what mister gollop her experience what happened is in two thousand and twelve there was a short sale and so then that becomes a different issue of whether when a short sale occurs whether any of the interest that it accrued in prior years whether that should be reported  to in two thousand and eleven there is as i read the complaint there's no longer an allegation there's not an allegation that she was harmed by any by any by the tax return from two thousand and eleven but i think that would still leave it there was it would still fit into our the bank was wrong and that the bank knew that it was wrong i also don't understand them to be stating a claim based on what happened in two thousand and eleven i understand it to be based on what they what they think credit of and should have happened in  thousand and twelve so if i could touch on this issue of the ambiguity the plaintiffs are heavily focused on this on this issue of when does the taxpayer have the right d and the ability  to take the deduction that is a separate issue i mean they're related but then they're separate they're governed by separate statute when does the bank report this interest in as good evidence to show that they don't align completely is that the i r s requires banks to print on the one thousand and ninety eight caution you may not be able to deduct the entire amount that it appears on that in ninety eight the i r s has also provided guidance to sho works the other way that you may be able to deduct more than what is shown on your one thousand and ninety eight if you determine that you can you take the larger deduction and you submit a written statement for why you think you're entitled to a larger deduction so if we look at it you know even if we look at the smoker case the plaintiffs rely on so heavily critical part of that decision is the fact that the taxpayer there was paying taxes on a cash basis and they decision draws a distinction and shows that taxpayers can pay on a tax on a cash basis or on a cruel basis and what happened in smoker is that the cash basis taxpayer look to the for a cash basis act a or you can only deduct the amount of cash that you actually pay the other portion of the if you paid make the minimum payment and that results in some interest being added to the principal we  bank and so there's no reason why it was clearly wrong would have been clearly wrong from two thousand and seven to two thousand in to view that what the bank was receiving was the entire amount of the interest that it was audited with that it was enti y to receive under the contract so you know a lot of ways the approach from two thousand and seven to two thousand and ten more closely aligned to what the cruel basis taxpayer would do the approach of two thousand and eleven to t breached in march two thousand and twelve on the short sale under california law you get four years for breach of contract and yet they didn't raise this until two thousand and eighteen but the prejudice is clear if you allow a breach of contract claim to be asserted two years after the statute of limitations would have run then i say my time's up so one final point on that and that is that this new theory that there is a breach of the allocation provision in the deed of trust is directly contrary to why it's alleged  whole new note that what they did in two thousand and seven through eleven is part of the ambiguity is also wrong i started never contended before today that what they did in two thousand prior to it's not the one of them was purposes of reporting at all nobody had ever said that accrued but unpaid interest that flag star never received is somehow ok it was just wrong and from various exceptions like a parental loan or something whereby attend ninety eight will not issue those or that does not excuse flag star who's in this business from reporting correctly thank you counsel