good morning welcome to our our last case this is case number nineteen dash ten thousand two hundred and four constance daniels versus select portfolios service and m stein crosses i pronounce it correctly yes your honor ok whenever you're ready good morning your honor may it please the court i'm healing time crowd on behalf of the appellant this constant daniels your honor this appeal arises from the question of whether the mortgage billing statement attached to mcdaniel complained that misrepresent amount owed and voluntarily represent that each is an attempt to taken is true and that daniel's claim must be permitted to proceed estate is a claim for relief which he had before getting to legal argument today i will highlight some of the key well clad facts here that are significantly different than the other appeal  in the two years statute of limitations under the florida consumer collection practice and the one with in the one year statute of limitations under the fair debt collection practices act that is required by federal law by regulation to the truth in lending act out that qualifies as a debt collection the answer to your question your honor it require eight that section two defines communication and i quote as the combining of information regarding directly or indirectly to any person through any medium individuals a statement with detailed information including everything here because really when you look at the statements in question they really almost are identical to the model truth in lending act done and you recommend mortgage servicers send truthful information including truthful amount owed using that form your honor reference and the purpose of that warm is to break down complex mortgage term interest evenly digestible disclosure to the consumer here however collect a portfolio trying to manipulate that help who are to protect it help through fair debt collection that arises from untruthful information in the mortgage billing statement that if you hear that does not make sense and that does not make sense because the truth in lending act is not meant to protect the l only requires the amount due on a home mortgage to be accurate after acceleration of the mortgages occurred at which point were closure in it so while the truth in lending act may not to correct she was not delinquent at the time that these statements were spent with respect to the correct amounts that were paid during this time period so while she was delinquent pursuant to select portfolios records which could land her into a nd improper foreclosure the issue here is that she should not have been delinquent the misrepresentations of the amount owed for example you the misrepresentation is the deferred principle balance on each and every mortgage billing statement and that is the alleged eighty three thousand two hundred and fifty nine dollars and and shown in exhibit b he asked and composite exhibit g this case is that the twelve b sixty eight which means that the complaints allegation and attachment and they are when each and every statement include misrepresentations amount of an language in excess of the truth in lending it further if the court were to take portfolio argument as true there would be the same policy concerns that this court considers in the real case and that would be that the fair debt collection practices back would only apply the unsecured debt yes good morning in may please the court my name is benjamin brown and i represent the absolutely select portfolio servicing as you heard during a balanced presentation this matter involve appellant takes issue with the accuracy of some numbers that are contained in a standard monthly mortgage statement form that is required by the truth in lending act and which  complies with the content of the model form a let's let's let's start with the language of the federal act mr brown the relevant provision which is six ninety two little a sub to doesn't talk about a debt collection strike it says that a communication is quote the conveying of information regarding a debt directly or indirectly to any person through any media and we've said that this definition is very broad so why isn't your mortgage statements a communication under the  c for sending what this court has determined to be garden variety monthly mortgage statements that are mandated by the truth in lending act and which comply with the law is a mortgage statements the conveying of information regarding the debt well i don't think that it is at at most it identifies the amounts do but it's different from the demand that the appellant claims and of course because it's required by the truth in lending act to score in green and numerous other courts if have held that because certain content and language is required to be given by federal statute mortgage statements that are in correct about the amounts do well and of course i think it's somewhat of a trick question but you know  in reading green the no you're not it's not a trick or it's not a trick question i mean tiel requires a service or to use a form and no one at least for my part i'm not suggesting that every time you send out a mortgage statement it's actual under the f t c p a but if you're sending out an allegedly in correct mortgage statement with sixty thousand dollars more than is owed and you say on the form that this is an attempt to collect that debt why isn't that actionable under the f t c ph in the reason is because of greene and the way that it c statement you know sufficiently or substantially complies with the language requirements that are in the truth in lending act and the model form and that's exactly what we have here is not regarded as a regardless of how you fill in the blanks well in that of course there's you know what the appellant is taking issue with is the accuracy of latent information that is included in there and that's not would green cents you know in  reading holding in green or excuse me one of the specific or important provisions of green as we find nothing in the language in question from the mortgage statement beyond what is required which rises to the level of being unlawful debt collection language and that's in roman numeral three b under the mortgage statements this debt collection section and then further the last paragraph proceeds in the last sentence of that section keller and from our st do you agree though that if you if the mortgage statement included the language that was h correct in what those two demands letters are you know in looking at them those were sent between october and december of two thousand and seventeen and this was approximately one entered which found that that loan modification agreement was in fact a political to the subject loan and it's also worth noting that you know these those demands letters that the letters sent by borrowers coun l you know those were not any sort of genuine attempts to explore alone accounting it weren't sent under arrest but rather they were sent to an effort to trick the service or into waiving the deferred balance which the court ordered that the letters say that and you know from our perspective if our mortgage statements provide the borrower opportunities you know to contact the service or if there is a question about the loan accounting that's what the t instance in it to be you know filing a lawsuit accusing a service or of improper action rather there's a separate federal law for exploring these you know alleged accounting discrepanc you know at the twelve b six stage we understand that the appellant's pleading is assumed to be true so from a procedural perspective we can't really dispute those figures of course substantive we do but we haven't you know articulated those issues because it's not necessarily appropriate of the twelve be sixty age ok is there were not a monthly mortgage statements our perspective you know green answers that question and sets forth the standards that as long as the loan servicer complies with the language requirements of of teal and the model form with shoes no there's no question that we did and you know in every instance in detail this in the brief as well about the alleged discrepancies in language none of those are meaningful in any way and with this really good redress civically the one where wolf st of all the f t c p a does require that the language we included on there is included in the initial you know monthly mortgage statement where the initial communication with the debtor so there's no question if it was included in the initial monthly mortgage statement that it would not be actionable and the the fact that that language may have been carried forward into the future you know we've cited several different cases from other circuits which have specifically held that the that language or the labels that this is debt collection correspondence is is legally irrelevant and we've cited cases from the six thousand seven hundred and ten circuits on that point so it from from our perspective the case law bears out that you know the mere inclusion of of that language which is specifically you know required by the f t c p a at a certain point in time you know although it may not be required at a later time you know consistent with the six and the th and the th circuits that it's not actionable and also that that language just not in to change or modify these garden variety mortgage statements in any meaningful way so as to take them outside of the protection that i think the green has it right and i think that you know all and i you know i think that green has it right and you know in so far that the language of the folks in the language of the model form really govern the situation and i think that green even you know intice a page that there are there are possible ways in which additional language could be grafted on to the model form such t take the monthly mortgage statement outside of the protections of and there's a number of ways in which this could be done for instance if a loan servicer you know copied and pasted a demand letter into the months when we're each statement or if a law firm took the monthly mortgage statement and you know stapled it to a demand letter there's a lot of different ways in which the monthly mortgage statement you know could be taken outside of the protections but again brown you can wrap up if you would like yes so you know we believe this this court should continue to follow greene by holding that routine monthly mortgage statements such as the one to one that issue not constitute unlawful debt collection activity statements required to be sent by federal law through the lending act and therefore complying with such law should not automatically trigger liability under a separate federal law designed to address that greene has it right but this case is not free for three reasons st green single mortgage statement did not mis represent amounts that this green single mortgage statement does not represent but it was an attempt to collect a debt and rd their anguish in question ingrain was limited to one important messages in a single market statement that by judge will go a truth in lending act does provide for information regarding the correction of an error mitch daniels did not send th or demand letter to select portfolio regarding the error respond with the correct accounting numbers but they didn't respond with anything at all they ignored both letters and they did not provide the correct accounting figures because they could not finally apply to unsecured debt that's because the only written communication and work asparagus are sent to a consumer in connection with the collection of their mortgage debt is the monthly mortgage billing statements and your honor if i have been working in your honor they should have responded with respect to the line by line accounting at the bridge balance but you're correct the letters did not notify them of the other misrepresentations allegedly complaint but those misrepresentations are still alleged and the daniels was not right thank you both very much we really appreciate it ok court is in recess for today and we will start up tomorrow morning