there is this is a case about two people who have not had an opportunity to present their case at all their cases been dismissed before any of any type  factual discovery has occurred in they have actually played very substantive and material allegations in their complaint that create significant factual issues the dismissal of this case was done without any basis or any statements as to why the motion for new trial was denied without any recent explanation for what had happened and we believe that the factual allegations that have been made are significant and should be pushed forward order of foreclosure from say district court that was voluntarily dismissed for reasons that are not in the record we don't know when we have no idea why they did it but it was voluntary leads missed in december of two thousand  the allegations were that they will pass or used actual imitations of texas property code section sixteen point zero three b which requires that any type of foreclosure on a home mortgage loan must occur within four years of the maturity the argument i take is arguing that the voluntary withdraw of its notice of acceleration in december of two thousand and nine was a was a recession acceleration was withdrawn that was dick celebrated it was rescinded and therefore there was no statute of limitations that started the texas law is still developing on this area but i think under texas law there has to be some indication in the record that they actually intend to do that and get to this but at eight but in march of two thousand and ten march of two thousand and ten bank of america in the district court we filed a motion as my dish filed a motion to him in the complaint it was filed and somehow another it was immediately filed a response saying that they had we did not contact which is correct but then later on di tech filed a response saying that they did not contest the amended complaint because you complied through fifteen and now they changed positions on that quite a bit later but they have bay have said and they are should be stopped from a judicial admission they made in the case that the in that was in feb twenty ninth two thousand and sixteen it's a record on appeal number one forty nine diete is unopposed to plaintiffs filing in a minute petition under the purview of rule fifty civil rule of soup siege of fifteen defendant does not dispute the plaintiffs may amend as a matter of course within twenty one days after service or responsibility or twenty one days after service or motion under rule twelve p whichever is earlier then they came along may twenty sixth two thousand and sixteen and actually change their position on that saying that you know they filed an answer in state court and that instant state court didn't required us file an amended pleading within twenty one days of their answer in state court now it's our position that this is just first of all they can't change positions response the die take violet only says die tech specifically denies each and all of the allegations in plainest petition and respectfully request that plaintiffs be required to prove all claims and allegations asserted against there is something that needs to be corrected that did not happen in the state court in the in the answer to the general statement that they filed in state court there's absolutely nothing that the snyders head to indicate that there was any concern  you have to do then is wait the time period more than twenty one days filed a motion to dismiss what you want us to say is that this time honored tradition in the state court of filing a general denial is not a acted on it then when that motion to dismiss a style if they win that's did they win by default because we don't have any ability then to him in the complaint and that's exactly what they're arguing here is that we lose by default because they failed to mention state court which had nothing in it at all you put us on any notice they come along after the time periods effectively run afoul the motion to dismiss and say king you don't have a right to respond or to address our motions missed by many in your point i that's a tough pill to swallow if that's the case then people are going to manipulate file any type of response of pleading at that time and if you don't consent and the court doesn't act on it you're lost even if you've got good arguments the amended complaint goes through and lists multiple things and i've already mentioned one of them but the it was it was alleged withdrawal it's the only thing that's been done here ledge all of this notice of acceleration december of two thousand and nine march two thousand and ten trans union reported very specifically as i said foreclosure initiated equifax may of twenty nine two thousand and thirteen they are violating texas debt collection laws there that practices laws by making those reports to the credit reporting agency they cannot have it both ways they can say we are not in a foreclosure status because we have withdrawn our noticed acceleration while at the same time reporting mr snyder as being in foreclosure and in foreclosure one of the worst things that can happen to you on a credit report is having your home mortgage very delinquent confusion that they have even raised in their briefs where they said once they made the allegations it was up to the snyders to come back and present material facts that support the position we're not in the something judgment in fact filed that if you're going to treat a motion to dismiss is a summary judgment the other side has to be put on notice that additional information can be presented that never occurred it's never disputed that occur so we've got a situation here where there was a complaint was motions missed there was a minute complaint out in twenty one days it had some very significant material allegations that appear to be not addressed by the court of el they are completely not addressed by di take in any of  reading before this court they have not addressed any of the dishes in the amended complaint basically taking the position it's not a life pleading even though they consented to it and just said you lose you lose on an incredible technicality here because we found out the answer in state court that said nothing in it other than we denied everything and we filed an alligator a motion to dismiss that had specific allegations in it and you don't get to respond to that fifteen within just fourteen days appellant filed the instant case to prevent the foreclosure from occurring arguing that dissect is barred by the for your statute of limitations based on its predecessor an interest bank of america sending a notice  and to further delay the inevitable foreclosure proceedings di types position is simple on the face of the petition appellants allege that bank of america or excuse me opponent judicial admitted the fact that bank of america after filing its foreclosure auction based on the two thousand and nine exhiliration voluntarily dismissed that action under texas law voluntary dismissal constitutes abandonment resetting the statute of limitations and restoring the no to its original condition judge a go or is just a missile of opponents petition was proper she simply apply precedent to an undisputed fact and t relying on denby in the western district of texas similarly found and better route holdings versus m t g l q investors that acceleration had been abandoned based on the defendant's predecessor an interest citi mortgage voluntarily dismissing its foreclosure claims without prejudice and state court this case is identical bank of america predecessor in interest voluntarily dismissed its two thousand and nine foreclosure auction there by abandoning its previous accel aeration resetting the statute of limitations and restoring the no to its original condition other courts in the fifth circuit have also granted a defendant's twelve b six motion when abandonment is evidence evident on the face of the pleading those cases are costello of e u s bank trusts and which the southern district of texas granted to defendants motion to dismiss on the basis that plaintiff's limitation argument failed as a matter of law and  and fifteen the previous accelerations by its predecessor in interest had been abandoned and the cause of action had not yet occurred similarly the southern district of texas granted defendants twenty six motion and c loan servicing holding that amended complaint failed to allege the fish up facts to plausibly support the conclusion that the statute of limitations had run but a march eleventh two thousand and eleven notice of acceleration had abandoned had effectively appellants now argue that their petition was alive pleading but that is not the case and not just not the parties understanding and fact the record on appeal for the joint discovery plan that's record on appeal page one fifty seven shows that when it lists the motions that were pending before the problem an area hearing it said defendants motion to dismiss and plaintiff's motion for leave to him and plaintiff's original petition may be denied when amending would be futile as it was here appellant first amended petition was more of the same the additional facts asserted were with respect to alleged statements made by di attack or its predecessor bank of america to third party credit agencies but these credit reports do not change the facts that bank of america voluntarily dismissed its two thousand and nine foreclosure auction opponents rely almost exclusively on the case bank association is instructive there this court the fifth circuit narrative that texas courts frame abandonment in terms of waiver waiver can be express through clear repeated ation of a right or implied through conduct appellant interpret callen to come up with their own role that if a new holder takes any actions and consistent with an intent to abandon such as making statements to third parties such as the credit agencies then the all book or no longer has an ambiguous notice that it may resume to make payments and installments but column is actually about reliance and waiver and callen the court eyes are a case of talent arguing about the court should assume that dissects twenty fifteen auction was based on bank of america's two thousand and nine notice of acceleration or alternatively that statement supposedly made to third party credit agencies were inconsistent with its intent to abandon such that knows such abandonment occurred but with respect to their second argument the credit reporting argument it's helpful to look at calendar and the fact that here side by side in tallinn deutsch took an overt legal action the bringing of a second foreclosures to relying on the two thousand and seven acceleration for the purpose of foreclosing on the property there collin was notified of the auction through service of process here complained of conduct in the first amended petition or statements purportedly made or bank of america to third party credit bureaus or agencies for the purpose of alerting other creditors of the debtors credit risk and delinquency in addition it's not as if dies or bank of america sent these credit reports to appellant they have no control over when appellant pulled their own credit reports so it was not a direct accelerate and abandon supposed exploration it is clear that statements made to third party credit agencies or bureaus does not rise to the level of disavowing bank of america or diet tax rate to abandon acceleration and with polling think looted because a number of the twenty fifteen foreclosure auction and a cursory review of that auction would reveal that dies i didn't fact send a notice of intent to accelerate in april know it's it's quite evident that they are relying solely on the fact that they would dream this notice of it at this last in order for foreclosure in december of two thousand  in which in the record is that bank of america reported within three months to the credit reporting agency that the house loan was in foreclosure  that's been shut down ok in did you get into all of that that that's not what's happening here but the density for the texas law did better in different that's what the law sacks that's exactly what the law says there are not cases out there that the cases that they've cited do not have any type of fact that this case has where you've got a withdraw all and then you've got a very overt act saying the house is in foreclos the order business in the case incentives back down from because it was a legal holding what is the holding you want us to make what is it we've heard you in terms of what you've said about the texas procedure and so on and so i'm asking a straight up if you want one what is it you want to write what is it you want to see what is the holding in this case going on in the what we would like this to the court to find that there under a motion to dismiss if there are material allegations that have been pled that emotion and some this is not proper in the circumstances the holding should be that the act allegations in the amended complaint which was timely filed are create material and significant factual issues that are not subject to a motion to dismiss needs to be sent back to the district court of the district this is a problem because we don't know and see if they have won this point in time without any understanding of what the records in bank of america show th argument that the withdraw all in their recognition was done for the reasons their records should show something was going on because they sent a credit report out in march of two thousand and ten this is another credit report up in march of two thousand thirteen the least they descend at least three different times they send out information to credit reporting agencies each single time each time saying loan is in foreclosure what did their internal records show we  that discovery now the records may show something that actually supports their position i don't know but not my client should be entitled that my client should be in again a come back finally say if in include clothes i really like i'll give you one sentence some of the point in the holding should be your honor that the amended to point that was timely brzezinski presents material factual allegations that are not subject to a motion to dismiss and therefore the order granting the motion to dismiss a new trial should be reversed and sent back to the district court all right thank you