application modification the foreclosure would have occurred sooner with your reaction that is it just no evidence to support that or is a matter of concept that would not be sufficient delay from filing that case filing bankruptcy petitions with false statements caused harm that it would have maybe possibly hasten the foreclosure and and allow the government to recopy recoup certain restitution we think the reviews errantly in your view some evidence that is there any evidence to support that the damage was greater as a result of a delay as to as to what the damage would have been delay or no delay again i think that there's it would be pure speculation to just to to find that there wasn't any any greater or lesser amount we don't know the problem is going into be a situation where his fault the loan application did delayed a foreclosure which affected the ultimate price that that howard had to pay well judge you have to have then quite possibly want to say well there is a possible causal effect at the end you have to prove the actual harm to bill how much did it cost them i says that in the randall case it's it doesn't matter the delay but but let's back down the point that you have to show some kind of harm in order to justify the rest of the matter in this case we don't have that harm we don't have the amount of harm we don't have it was one of the causation that shows the harm and so i think the courts concern is more in the theoretical sphere that may be appropriate for another case the government proved this burden to show that there was some causal effect in between the act of fraud and the eventual harm that was done if this case if the sent e or the restitution whether correct or would it get remanded in if the government given an opportunity to try to show part of that money was a result of the false loan application and it caused a delay and it may be now your climax some money off if he was getting money from the people who originally had the mortgage could they be victims judges have the  this issue you know what needs to be looked at to resolve this case the laws prove well established in this issue right here and so george the court's concern about the other individuals at the time that we had the hearing was that the dams were caused by by his filing of those false statements and again it all boils down to whether the judge  good morning may please the court this is a complicated case where mr been executed a scheme to defraud tens of thousands of dollars out of the suspect individuals and bank of america as a part of that s in order to buy time in order to de fraud more individuals out of their money he went to bank of america and sought to extend the terms of the loan by misrepresenting himself as the original borrower and by submitting false documents to support the loan modification that loan modification never occurred bank of america turned it down he collected over thirty two thousand dollars during this time period he sent bank of america proximately forty nine hundred dollars but we know that the only reason why he filed this motion to modify the loan was not to help the homeowners who had was a victim of a direct the court finds a direct victim of the total amount of loss which was about fifty four thousand dollars and that's what the district court found in this case so that's where we you maintain that it was foreseeable that the filing of a false loan a loan application would lead to good the insurer suffering along when the property alternately was was sold for less than the amount due on the on the no it was certainly in my mind forseeable that while you're collecting money payments that are supposed to be forwarded under the terms of the deal that he had with people then that the bank is that those funds would have offset any loss at the end if there was a default on the loan i think that is i think that is completely forseeable if you're pocketing the money that you know should be satisfying  bank didn't lose any money though did the the bank did not lose any money as a direct result as it has federal insurance through their hide to cover the amount of the loss  randall which which appellant cites in his brief i think is somewhat distinguishable because here it's clear i think from the record that the only reason and there is testimony from the agent about this the only reason why you seek that modification is to basically forestall foreclosure and that is a direct reason why he does this is so that he can perpetuate his scheme and so this case is somewhat unusual in my mind at least because he is filing this false statement with the bank to perpetuate a larger scheme to defraud and so under that unique circumstance the question i think becomes is he responsible for the loss well you're saying that he did it to forestall the foreclosure inevitably if you don't make i think it's forseeable that if you don't make payments on the loan eventually the loan will be called so yes i think that's why he's why he's their their their loan and there was a better way going to be a foreclosure and hard was going to have to pay how do we know how much of it one of happened anyway and how it would have had to pay and there was no like an intended lost area i think is how it went that the total amount in other words that by criminal law basically the government argued below that this whole thing was he criminalized this thing as part of his scheme and so in the end when it all goes bad this is what the government or hud was was suffered a loss and that was the amount the district court found the agent was clear that he could not parcel out or didn't have that information with him as to what would have happened had there been some accounting and i don't know that any accounting was possible but it was clear that there's a difference between delinquen and foreclosure and that many people are delinquent on their loan and never go into foreclosure what brings about the foreclosure is the collecting of those tens of thousands of dollars and not for getting them don't know whether or not they would have remained on that boat but that's where they were hit i can't dispute that these people were in arrears when he reached out and was supposedly going to help them which of course in the end you know this is a  be what led to fifty thousand dollars some other loss to heart and so far i'm not hearing the causal relationship i'm hearing a causal relationship that may have increased the amount of but no evidence to support that it seems quite possible to me but no one broke that down as you as indicated as you can see that that's fatal to your argument but innit undermining your argument that you don't have this sort of for the quid of the of the following a false application of the cuomo this law i think ultimately this court has to decide whether the district court's use of the entire amount of loss was appropriate under fisher and and admittedly i think it would have been preferable had there been evidence that would have segregated out what we do know for sure and what i think is interesting in this and  disagree by the way on the question of whether if if there's an error in the district court's handley know it's calculation i think it results in a remake and might personally i don't believe that this court can just or should just  xcise the restitution or there are numbers in this record which show that as part of this scheme he collected over thirty two thousand dollars he paid the bank only about four thousand dollars and if that was that lo modification allowed him to collect those moneys and those monies had been transferred to the bank then it could have been reduced from the fifty four thousand dollars i think there is some methodology there that maybe we get to a more accurate number if this court finds that the the total amount to offer it up in in looking back i believe me we have a look back at the original opinion of course there was a whole larger discussion of the if any was really about relevant conduct in the end and at the very end there was a smaller section on the restitution and i believe that the government of the trial usa based on his comments before the district court believed that he had an argument to say that he thought he could make the argument that mr benn should be responsible for the entire i think that that that is to say that the opinion i think that in this case the government and the district court operated under the theory that the way they proceeded was sufficient in the district court clearly didn't buy the idea that we're going to hit all of the victims which the government actually had argued for the government ultimately the district court simply awarded the fifty four thousand which was the amount to cut and not the other victims and it seems to me that that i think one of the other questions earlier was whether maybe those other victims could even reasonably fall within that i think that may be a tougher question although there is this foreseeability question just graces as you recognize that that that at some point we look at whether it would be forseeable that as a result of the conduct that there would be this loss and on some level i think that at least as to collecting monies from these individuals and not fourteen and ultimately not pain that the loans going to go into default and that had those funds been transmitted it would have either mitigated the amount or maybe that's actually what bank of america and hud for out that that's money that should have been forwarded on to bank of america but he kept twenty eight thousand and twenty seven but the problem i have with that is is that his following of the loan application assisted his collecting that money but the last i heard was not because the follow on avocation is an indirect effect of it but he wasn't charged with convicted of and seeking restitution for having swindled these individuals and not sent their money on the hood and that disconnect to be is the problem an argument that you're making i guess on some level it seems unusual that someone would be able to pocket the ill gotten gains that at the expense of the collateral holder and there be would and it may be that there is no remedy for it may be that he does get to keep the money gains it seems to me that that's what the district court was trying to address this up at the rim and it would be you get him to plead guilty to more than just one often point well take