united law center but i am the partner of god law center appears now that this court should have been so notified that a different person not denny barrett would be here to make the oral argument i have fully reviewed the matters and the partner not get lost in a can fully argue this matter before the court and it won't do that the court would still continue entertaining argument from me on a couple of a couple of limited points i'd like to make course we were the ones who did the opening brief in the report the reply brief and so we've basically said everything we want to say but i want to make a couple of points here if the court would continue to entertain that yeah i never faced a situation before your honor and i'm not sure what the court wants to do in this circumstance here it's apparent from the our offices fault here for not notifying the court here that i would be appearing about  confirm with the clerk when you sit down give her all the information in the we're going to check it out just go ahead make your points and i'll do that very briefly here in light of the fact that we've already arising out of an eviction of a foreclosure and try to defend that case on the grounds where the foreclosure was done wrongfully yawners because we were in the middle of a modification eviction courts do not hear that in the eviction courts it's clear by california law all  the bank plaintiff has to do is flash in front of the court the trustees deed that's it the only possible defense in an eviction case is oh you didn't give the proper ninety day notice or twenty day notice so we have a circumstance in which in making a decision by a lender to foreclose this it's a severe consequence unlike any other consequence in california law here where it is tantamount to an eviction of a person from the real property residence from which there is basically in effect no appeal from they would have to try to file a lawsuit before the foreclosure sale i just think that's an important point in the context here of did the bank this isn't whether the bank had the right to foreclose here is are there triable issues of fact i guess what are the travel issues of fact that you have here and what they are and i'll point to the most significant one which i see in the brief was was very categorically stated later on in the argument but the number one argument was that within the within the bank's own records we look at the fact that there was the may eighth note that says quote in large print currently under maad review and so what claim does the act of two so that because he wasn't aware of that note until afterwards right understandably even if he wasn't aware until afterwards that came up in discovery it's still the statement of the bank that this person here was still under model review though what claim does that relate to because for an intentional or negligent misrepresentation claim he has to rely on  currently under moderate view however there was a whole series of events that took place before then and i asked the court not to consider any one individually because any one individually may not be sufficient to create a travel issue fact but when you go through the historical analysis here that the phone call was served her to where he was told and i know it's innocuous to say let's start the ball rolling again and i'm this is the initial interview so after his didn't the denial or the withdrawal i guess i guess that happened in february was there a did he submit an application and where is that in the record there's nothing in after that after he received that letter did he submit a new application and not a new application but he submitted the documents that they requested him to submit so so did you was there any basis for saying that after he was sent a letter saying we can't help you and we're going to resume collection process why does the submitting additional documents create a genuine issue of material fact as to whether he negligent be led to believe that by the same middle of the documents and the combination of events how when he submitted documents in the past that postpone the sale how it been postponed a couple times before how when he was told by suburbia in the telephone call to get  one of them says when we get a complete document filed them will start or hamper review and during the hamper of you we won't foreclose but before the ham preview while they're still collecting documents i didn't see in the wells fargo letters that there were any promises of not foreclosing so maybe walk me through the ham process and tell me what the law requires what the what wells fargo's policies are and how how that would work just to create an expectation that application when it's submitted is there an application is there a like a do you fill out a application and submit it to your lender or do you sit in email asking a what the how how would you you start the the pre i guess it's pretty ha two or three page form and which is specifically states you're supposed to list your income your expenses all under penalty of perjury and you have to attention is not good enough just to submit an application you have to submit the back of documentation bank statements tax returns forty five or sixty eight tax forms or wells fargo says once we have all the documents that we've requested then we'll start the hamp review and we won for close while year and ham preview is that that was what i saw in the letters is that is correct ok and then if it's determined like twice to determine that mr fox didn't meet the hand criteria for getting a loan modification and send out a letter saying you don't meet the criteria because we can't fashion a payment it's your your income and it gives him a thirty day window which to appeal that says we will foreclose within that thirty days and then they say they'll resume collection activities is that correct that's february where they said we can't help you no it's not an application other application or so so so you're saying that there was an application form somehow pending even though they had said we deem it withdrawn and then said we can't help you  there's an application form and submit it and let's just assume the first place if we can that there was there was at some point in time before february ninety eight so called complete application submitted well we know that he was in ham preview twice right and he was and have reviewed twice that he was denied both times for failing to meet the financial criteria and sometimes after that february night or a letter saying you're denied for a modification which could have been for whatever reason they denied him for well they had to and they said what the reason was the reason submitted the bank doesn't accept documents just because you want to send them in but following a telephone conversation in which is documented states that he was told here were initiated in the interview it is to get the so called ball rolling and well what is getting the ball rolling it isn't just trying to call just to talk about nothing here it could only and it was only in connection with a modification application and so want to bank turns down a because as was stated you don't meet the financial condition what is a generally mean your income isn't sufficient your expenses are too high but that doesn't preclude them it's not like you get one shot with the bank and that's it or they actually the public could tell a letter before the current foreclosure the says well we've reviewed you again and by the way your financial situation hasn't changed or even if it has changed it isn't sufficient that they have to do that if they haven't initiated ham preview in the other cases they said ok we have all your documents for initiating have preview and we will foreclose but they never send in that letter in february but here with the events that occurred both before april two thousand and six before february two thousand and sixteen and afterwards where he has not only a phone call but it's also even within the banks notes i think taken as a totality even the banks notes that he's currently under moderate view and even the made no foreclosure review and i understand that that's not something that he was told but it's crucial here because if the bank is admitting he is within a modification review then that at least creates a tr you said that the phone call that let's get the ball rolling yes for the interview yes i did that interview ever take place i don't know if i can't say there's evidence that was because all the doing is evidence here that was presented whether or not there was an interview that took place but if you don't you think that would be significant it is significant if you get the bollard to get the ball rolling again we got to start with an interview did the interview take place i don't know  the evidence he submitted documents subsequent to that and if you look at it again i think the most crucial point reader read here is that he submitted documents or did the consumer counseling center excuse me through the his agent to consumer counsel submitted the documents and if it's the bank in the may eighth that says you are under we are taking any modification that's a crucial admission on their part that they at least believed that whatever he submitted afterwards whether the interview had taken place or hadn't taken place or what documents you have submitted if they're saying he's under modern review and there's nothing after that prior to the foreclosure case that rescinds that then i would strongly maintained th remained the combination of all the events or at least triable issues ok for a jury think i will hear from the other side morning on or thank you i may please the court robert bailey for wells fargo try to keep it short i can tell from the questioning that the court really understands the issues  one of the key documents that i'd like the call the court's attention to you is the letter that wells fargo sent to mr fox when he was complaining about his the process  so they sent him a letter on october twentieth eleven and it's a page seven seventeen to seven twenty of the record in which they describe in detail a timeline of five reviews actually by this time is only for the february two thousand and twelve is the fifth one and they tell him in the letter that good list here's the documents that we're going to need to have a complete application they tell him if you're going to apply again your data has to be within thirty days old they tell him that we do an interview in order to they don't use in this letter but it's pretty clear get the ball rolling so there are steps that are necessary for a complete application and of course the court hit the nail on the head it's the idea that borrowers can just submit documents i just submit documents that means the foreclosure is postponed for ever no it's and this is exactly what california is a homeowner's bill of rights in acted it's when you get a complete application when you have all the other documents you've done your interview that's when the hold goes into place office of the comptroller of the currency saying wells fargo should have given me a loan modification wells fargo response to that first of all by trying to call him several times and then when that fails by writing him a letter detailing here's what we did and here's how we got to the point where we are now he sent in the documentation in two thousand and twelve in response to a letter that is on page seven fox but he couldn't afford the house he lost his job he had an injury at one point in one of his modification applications he had literally had zero income and another one he had three hundred fifty some dollars a month  and yet wells fargo still was not foreclosing it took two years from the time he missed his payments until the time the foreclosure was going they kept it going kept reviewing  then said well i've got a boarder and that's increase my income so in this january twenty third twenty twelve letter they say ok give us proof that you have a lease that there's some rent being paid you're also going to need to see the bank statements the show that this person is actually paying rent but you didn't just make up a lease and they extend the time for him to send that in they push out the foreclosure push out the date so that they give more time to do that and he doesn't so then he sends in documentation after the deadline and after he gets the letter saying sorry we're done and counsel tried to characterize that as well he must of had an interview because why else would he sign the documents we're talking we're talking after february ninth right and he sent them because and his cover last it's faxes at long last here is the lease so let me ask you this so after february ninth as i understand it he says that on february twentieth he received this phone call voicemail right right whatever it was let's get an interview get the ball rolling right did an interview ever take place  and in fact we presented as best we could from our records trying to prove a negative so we presented all of our notes logs and probably overly burdened the court with a a bunch of phone calls where bank representatives are leaving voice mails we need to contact you we'd like to do an interview our notes logs say  that they could start the process a new they could theoretically i suppose start the process a new but what the documentation shows the february eighth letter and then there right after that it's a page seven forty there's a february thirteenth letter saying there's other things that we will consider you for than the hamp review and those things as the october letter also makes clear also will involve an interview relocation assistance which they did offer him even twenty thousand dollars will let you stay for a certain amount of time at the end of that time you will have moved out of the house and will do either a friendly foreclosure explain that language well it's there's that the active review which is essentially how the evidence came about whether somebody is in an active review active hamper review is when the process stops of foreclosure when somebody is in potentially in a modification review for one of the other programs there's also a program called map you are and you may have seen some references to it in there and it actually has some proprietary elements that wouldn't necessarily trigger a stop of the foreclosure sale especially if there's been no change when you've been reviewed five times in your situation is exactly the same we can do it again but we can still proceed to foreclosure if it looks like you're either not giving us the documents or you have what documents you've given us haven't changed at all the other thing i mean that so you're saying we're not there review it's frankly what it is and there was discussion of this from some of the if the court really want to get into the weeds of the testimony there's a lot you'll see to the the left of the notation there was three letters f o r that's the foreclosure department putting a notation in there if it's the last medication department the people who do the mode one model of use it will say  so instead of asking a witness about this document instead of asking a thirty six witness to explain what this is this is just some speculation that ok this like and i'm going to yank this document out and i'm going to characterize it as a indication that he was under a hamp an active ham preview so whether or not the foreclosure department would accurately characterize what the loss mitigation department is doing as a complete model review in other words it's not an acknowledgment by foreclosure that loss mitigation has a complete application it really is just a notation that says he's still communicating with somebody about something about how much time it expired between the time this get the ball rolling and and the foreclosures that happened february twentieth and then the foreclosure was may seventeenth double match or three right and that was another issue that was raised in the reply brief with the oh let me just finish that point there as to whether or not the interview happened in council said he didn't know mr fox didn't put it in his declaration they suggested that we should have proved that it didn't happen we tried with phone calls and records but really the easiest thing to do is look at the third amended complaint page eight zero seven the record lines twenty to twenty six he says he tried multiple times to contact the bank after february twentieth two thousand and twelve and could never get ahold of anybody and had no contact so he admitted that the interview did not take place as to the delay between the phone call and when the foreclosure happened that was another point made from the reply brief was that well we should have wells fargo should demonstrated that the reason for the delay of the foreclosure sale that there was an april date and it got moved to may that wells fargo should approve that the reason that happened was something other than the fact that they were considering a loan modification while we did the page seven seventy two of the record is the notes log that was submitted with the openings brief of trustees sale period california law requires that the recorded notice of trustees sale n p s must be at least twenty days prior to the sale date so what happened was that the  notice of sale was dated three twenty six and set a four sixteenth sale date which was twenty days but it didn't get recorded until march twenty eighth which were only would have been eighteen days so the sale was postponed not because of anything that mr fox did but because it was within the twenty day period and the statute requires that the sale cannot take place within twenty days of the allegation is california law right you know recognize a duty in this not in this context when you have seen the can the california courts of appeal seem to be a little split they are split and but what they do all agree on alvarez especially is that it's got to be more than just the way that you're chuckling paper you have to go out to the borrower and you have to alvarez  there specifically solicited the application and by soliciting the application you put yourself in a different position to then accept a duty to process that application that you asked for and the manner in which you do that and one of the aspects that alvarez directly looked at and again this is alvarez was a pleading case and all of these cases that have addressed that issue of the duty are pleading cases they looked at whether or not the borrower can establish some kind of prejudice so applying to be a conduit factors is there a certainty of harm that flowed from the fact that they miss process the application and all of those plaintiffs pled that had they processed it correctly i would have gotten my modification there's no such allegation here and there certainly no evidence here nor could there be he had no income he couldn't establish he had the rent his he was making one thousand eight hundred dollars a month on social security and this is a seven hundred thousand dollar s that the record shows that the only way to adjust it is to get into a thirty one percent debt or housing income ratio for his they would have had to give him your zero percent interest for seventy years he argues he was prejudiced because he could have sold the house or any friend well that's what he argued but then when he submitted his declaration he said he was prejudiced because or he relied on the statements because he thought he would have he was confident he would have gotten a model and therefore he didn't try to sell the house or get help from others it's not that he didn't do those things because he thought his he was going to be reviewed and that his the sale was not going to happen during the review he did those things because he thought wrongly that he would qualify for a moment ok i'm thinking you to think you are for allowing me to be heard this morning here but the clerk advised me just a moment ago that we actually never received a new knowledge moment from anybody for me or for about who was going to appear today though i don't know kind of what happened in our processes we usually are pretty much on top of that but i don't want you to leave here without giving all the relevant information to the clerk i certainly will you are thank a thank you schedule final points are on the issue of the duty the most recent california case and all maintaining argued the trend is to allow a a duty in connection with the modification trying to figure out what the california supreme court and they certainly have had a number of petitions before for review and not one is actually been granted on this particular exact point here i think it should there's actually some pending from our office but we don't know what's going to happen with those but at least appears that and even some of the district courts here have held based upon alvarez there's a duty here you know there are him italy other district so here the reference i think the counsel me reference to the for the for close the post them were nine the foreclosure sale for april sixteen was postponed counsel's argument was well the reason i was postponed was we can't do a foreclosure sale within so many days you know there's a tribal issue of fact here there were documents that were submitted before that on april thirteenth so do we know what the real reason is why they postpone the foreclosure sale is it because documents have been submitted and so now we're actively reviewing him or was it because that the reason why he was because we can't conduct the foreclosure sale that's a travel issue a fact here unfortunately there was no post april thirteen or letter prior to the foreclosure sale similar to the february ninth letter that would have said you know what we've reviewed you again one more time and sorry you just don't qualify that isn't the case here the case here is strictly did they foreclose while it was still pending how it would have turned out is not before the court here if he had been turned down again just prior to the may seventeenth because you didn't qualify that might have been a separate lawsuit but the only issue here are their travel issues of fact and based upon the totality particularly the bank's own note which kind of belies the defendant's or respond argument here that the reason why we postponed the sale was because we couldn't do the sale if that's the case where is that in the documentation here it specifically said in their note modification was under review ok with that it was submitted thank you very much