olson on behalf of defendants thomas cahill and bridget let me your honour's this is a residential foreclosure case there were two foreclosures initial case was dismissed a new case was filed the case went to trial and after the trial there was a dismissal for want of prosecution followed by reinstatement at the court's order  the plaintiff's motion after reinstatement the case went to foreclosure sale confirmation was heard and answered the case centers quite frankly on the face to face meeting requirement in the hud regulations under twenty four c f r two hundred and three point six zero four the relief that we're requesting on appeal is to vacate the final order approving sale of personal deficiency and to me man the case with instructions to dismiss the case now we've raised appeal two issues st that the trial court erred by granting reinstatement of the case after the d w p under section thirteen to seventeen and t certified violated the more than two time filing rule as seen as articulated in timberlake versus your line i hospital i will for the purposes of this argument however concede that in the plaintiff's brief they made the better argument however the nd issue is that the trial court erred you know ruling on the exception of the face to face meeting requirement again under section twenty four c f r two ser did and consistently did both throughout both of those foreclosure cases that if a default occurs you know repayment plan or arrange other than during a personal interview then the mortgagee must have a face to face meeting in this case it's clear and plaintiff has acknowledged an admitted that there was a modification plan and the default occurred during that mob it's a case in point in fact the plaintiff points out that it occurred five months after it was entered into that then in argument shifts the burden reliance on the exceptions to the point where the exceptions are set forth in section two or three six hundred and four percent c and there's five possible exceptions in the alternative any one of which would obviate the need for a face to face meeting and argue the trial court erred by mistakenly referring to exception number four which states that there are no face to face meeting is required if a repayment plan consistent with the mortgage or circumstances is entered into to bring  current and the payments are current well it's evident that the payments were not current that exception could not apply the only exception that arguably plaintiff could rely upon would be exception number see to where the mortgage property is not within two hundred miles of the branch office and plain did not present any evidence and meeting its burden to prove that there was no branch office or office of the plaintiff within two hundred more than two hundred miles from the mortgage the argument is frankly very straightforward it all looks to the notion of whether or not this condition preceding to the foreclosure has been satisfied as set forth in section two or three six hundred and four and it's clear that the burden of proof shifts to the plaintiffs to prove the exceptions to a statutory requirement burden shifts to the plaintiffs to prove the exceptions to the statutory requirement as it turns out and i appreciate the court's question because it's something that i did not address in the read for the reply brief but the burden of proving exceptions  statutory requirement is something that apparently has taken quite a bit of legal analysis over time and the touchstone that i came up with is schaefer versus w shortly clearly the sets when the party establishes that there is a statutory requirement that it shifts the burden to the party who is relying upon the exceptions to take it out of that clear requirement in this case to have a face to face meeting prove that g m a c had a branch office or service center which is i believe the statutory language as well right the g m a t service cent proof has shifted to the plaintive then in the plaintiff has not demonstrated or produced any evidence of any kind then well i will concede le strongest but does that testimony has to include that the person went inside and saw what business was transacted do they what do they need to show that there is some sign outside i mean what are the requirements well i think the basic requirement was satisfied by establishing that if you went to to an office that was posted for the sign be with the sign it's not but and that is not withstanding the fact that this information regarding no face to face meeting was included in an affirmative defense and we get we start with the fact that this was all propounded in the defendant's the affirmative defense correct that's correct and so obviously the burden in the formative defenses on the party how could the defendant be prejudiced by the absence of a face to face meeting if the modification if there could be no other modification agreement in other words there was one they were in the middle of that term so how could they be prejudiced well you know i hesitate to argue based on speculation but the the before i speculate i think the real answer to that is that  dealing with the same provision but a different set of facts on the issue of prejudice i believe the court has said that that's not something that's in the statute and that the court is reluctant to graft an additional condition it's not specifically set forth in a carefully drafted in this instance regulation to speculate it's certainly an entirely possible that on a face to face meeting which would have been the very st based in the face meeting they ever had they never had a face to face meeting even when they got the original modification they could have worked out some kind of a pa and it didn't necessarily have to be or even in the form scuse me of the forbearance or even a structure payment plan which i don't know that it's in the record quite  was not without it wasn't beyond the can of possibility since the defendant has come through their financial difficulties well when you say speculation i mean the plaintiffs do argue in their brief that there would be no prejudice so i mean assuming that well that that's part of their argument so i was asking really what you're anticipating that that's what they would be arguing what your response to that would be so you're suggesting that there may have been other options other than a loan modification that would be available is that correct yes and where they specifically loss mitigation options well in the general description of loss mitigation certainly a forbearance or a payment  letter part of the record here in its entirety were there provisions for loss mitigation options in that mortgage letter both informal formal and special forbearance  qualified for any of these last not a geisha an option now i think you said to me that that might have been possible you just argued that but do you know if the record reflects that what what in the record reflects what you just notwithstanding the fact that that those provisions may have been in the markets letter that's correct ok i don't have any other questions right well give me one second please just a minute not given the burden of going forward or at least not the burden of proof and that it is placed upon the defendant to establish the status of the factual scenario  well the distinction between the burden of persuasion the burden of proof encompasses both burden of persuasion and burden of moving forward and i think in this instance here be burden of moving forward is on the plaintiffs to show that the statutory exemptions one of the statutory exemptions supplied  you understand that normally rules of evidence place the burden of proof upon the party who is supposed to establish an affirmative fact because very often a negative fact is very difficult burden to prove that there is no maced see office within two hundred miles is more easily proven than if the plane t establish that there was one down the street half a mile away from the address no might my position is that the plane if they hope to do that and my point is if he had done it would it have been easier to prove that and for you to produce that within two hundred miles of the radius of your property there was not a g m a city building that's correct i have no further questions thank you just as mr olson doesn't common sense dictates that the branch office that i'm not sure i understand your question whether the are you are you asking whether the that office had this was so easy to negotiate the loss you described as a we don't even know what kind of a building it was all he said was it was a sign and she did not go inside and correct that's correct your honor dan would you agree that the obligation to raise the defense would would in order to establish a prima facia case you have to put on such evidence as will suffice until it's contradicted or overcome by other evidence would you agree with that i elements at least initially to shift the burden to the bank and your position is you met that burden correct that's correct no mr cahill is an attorney correct ye and he did try to kids focus on make a son and it's clear that that case speaks to the if you will weakness of the testimony of mrs money and that's what the the of the apple is arguing here that mrs the court nathan do come on behalf of the plaintiff here plaintiffs proved its prima facia foreclosure case namely plaintiff establish the existence of not mortgage the existence of a default and its damages without any substantive from the defendants defendants raise two issues to try to defeat plaintiffs and contest that proves one that plaintiff cause of action is barred by the single refiling will into the plaintiff's cause of action was barred by its failure to conduct or make a reasonable s forty nine in doing my research for this argument so i did not come across any directly on point discussion of the burden the burden of proof as was initially indicted in bankers life companies as then ten so therefore i think this court should take the default position that the party raising that affirmative defense bears the initial burden of pled that a bank branch was located d within two hundred miles of the property care misled me simply failed to carry that burden of proof on the slimy testified to was that there was a sign outside of therefore the relevant time period to determine when a face to face meeting would have been required or a reasonable effort to conduct one would have been triggered is september through december of two thousand and twelve driving by a court rather recently explained that in the context of the hybrid a branch office means an office that is open to the public and conducts mortgage business again miss funny testified she didn't go inside the building all she did was drove by and saw a sign should not conduct any further investigation because she did not think that she had any business to go inside of the building limeys testimony about the lack of further investigation in her lack of having business to go inside this purported office of jimmy c mortgage shows that there was no shows there added so as the defendants added to that they were not prejudiced by the lack of a face to face meeting because they did not attempt to engage in any sort of us mitigation and the record shows that even if they had attempted to engage in loss mitigation there was no possibility of reaching a settlement that allowed the defendants retained this home as this court initially applied the no prejudice principle in pennsy bank st wells and so in our brief to no prejudice principle was applied to a situation where the borrower had obtained a discharge of those obligations under chapter seven bankruptcy in applying the no prize this principle this court reasoned that players do not present the court with any direction from a district court showing that the no charges principle could be applied to the face to face meeting as explained in our brief in campbell verse wells fargo bank the district court for the northern district of verge of georgia agreed that it borrowers them edges were not caused by the lack of face to face meeting because if face to face meeting would not have resulted in a modification where the mortgagee was barred by hyde regulations from offering a face to face meeting here director does show that defendants could not have obtained any sort of b any sort of settlement or retention agreement if a face to face meeting had occurred in mortgagee letters nine dish twenty three directs its servicing agents to review borrowers l hamp situation which by virtue of fact that that is the type of modification that they receive it can be inferred that they do not qualify for special forbearance along modification or partial claim there is defendants did not put on any evidence to suggest as mr olson alluded to that they were experiencing some sort of temporary hardship why and they defaulted on their modification five months after receiving it in fact defendants had multiple opportunities to present such evidence and simply failed to do so plaintiff filed two loss mitigation affidavits in which its representatives averred to multiple attempts at outreach that were did not present evidence or argument to rebut those affidavits d or the testimony that was offered a trial so there was simply nothing that could have been done defendants didn't engage in any attempt at outreach and frankly even had they engaged in the attempted outreach there's nothing that could have been offered because defendants only qualified for f hamp modification when they were reviewed in march of two thousand and twelve and there was no change in circumstances alleged or suggested by the sentence during the litigation so to that timeline was cut from any time to twenty four months which still bar the defendants from receiving a subsequent modification and i have nothing further to address because the the plaintiffs would never have the burden of proving the exceptions or just didn't have the burden here under these facts i think under these facts in this procedural posture the plaintiff didn't bear the burden if we were examining this in the context of a summary judgment motion for example plaintiff would have the you know one plaintiff wanted to assert one of the exceptions yes plaintiff would bear the burd n similarly had defendants made a prima facia showing for example had misled me testified that when she drove by this office and saw the g m a t mortgage sign she got out of her car went inside spoke to a representative who indicated that yes we do mortgage work here i think in that situation then the burden would have shifted on the plaintiffs to provide some proof to discredit and slam these testimony or to contradict in some testimony but in this situation defendants did not do enough to switch that to require the person to be shifted ok i understand what the plaintiffs however been in the best mortgage was a national banking institution presumably defendants were able to go on their web site and search for branch offices so it's not it's not some mystery that can only be discovered by planning defendants has decided that they did find this office but they didn't present evidence or take the necessary steps to show that this was in fact a branch office and ok you articulated reasons why loss mitigation steps would not have been available to the defendants in this case you argued that does the record affirmatively show that as to whether or not they would have qualified for these last the st one and work your way down if the defendants qualifies for anything in the chain and that that ends the process right there by virtue of the fact that defendants and mischel qualification was for only applies where there is a verifiable loss of income no there is no testimony or argument anything from the defendants to show that their default was caused by a l i'm sorry what was that your honor if it had been a face to face meeting wouldn't that have been the place or time that that information would have come to light have come out during a face to face meeting that would have been the place that this information would have been cut would have come to light it i agree that the information regarding the defendant's financial situation would have come to light in face to face meeting however in reviewing this in the context of application of the no prejudice principle as this court planed in us bank st hernandez defendants have to show some sort of prejudice whether it's just an allegation that they could have qualified something defendants had multiple opportunities to explain their situation explain the reason for the default and they didn't do so during the course this litigation and whether and the pretrial motion practice or a trial ok thank you i don't have any other questions at th see offices within two hundred miles with an affidavit signed by or executed by someone who's in charge of the lease or real they could have established whether or not an office was there but i don't think that would have gone to the ultimate question of whether it was a branch office as explained step versus wells fargo where it's open to the public and conducts morga business leasing agents affidavit would simply have said yeah they rented space there and you know i don't think that they would have known you know the nature of it whether they open the office to the public and they certainly would not have known what type of business is conducted there is it accurate or at least reasonable to say that the distance requirement or qualification is an exception to an exception i think it is an exception to the requirement in it the way i do think it could be both because you could have an office within two hundred miles but it doesn't it's not open in the public and does not conduct mortgage related business or there simply isn't an office within two hundred miles but i think as sort of a threshold matter for whether or not these face to face meeting applies i think it is an exception to the general requirement who has to raise the general requirement of a face to face meeting that is an affirmative defense that the defendants bear the burden of at least presenting prima facia showing and something more than simply saying we have an f h a loan we should get a face to face meeting and i believe you've already argued that there was no prejudice is that correct because if the trial court make any findings relative to lack of prejudice trial it seemed that he was inferring that there was a lack of prejudice you know based on defendant's declaration their law modification agreement that they lacked sufficient liquid assets to make their mortgage payments now and in the future and then you know then five months of receiving disagreement i modify terms they fail to make their mortgage payments so i think it can be inferred but it was not a direct finding  i have no further questions thank you just mr buchanan the case the step case you keep saying well fargo are you referring to step persons us bank trust national we should we look to the federal circuit court's interpretation of the of the regulation i think especially in this situation where there isn't any sort of direct conflict with the yes i only have one comment the discussion concerning the ability of the plaintiffs to establish that they did not have an office within two hundred miles of the mortgage  reminds me that in this initial case even the initial foreclosure case the defendants filed and served requests to admit concerning that very issue and corded m plaintiffs to come up with the evidence that they did not have an office within two hundred miles and in lieu of proceeding with that response to the court's direction a voluntarily dismissed the case so again i emphasize that it was the burden was on the plane to to establish that and as pointed out by the justice know i don't have any justice maclaren any questions justice mclaren yes i'm sorry no i don't have any further questions because this question mr olson you just made reference to the request to admit but that was under the prior pleading correct st that are correct your honor yes and in this case your client mr de hill accepted the responsibility to go forward with the affirmative defense correct honor that's all i have the court thinks both parties for the quality of your arguments today i would remind the parties that always refresh your research before oral argument the case will be taken under advisement a written