case was region native our county has been described as ground zero of the foreclosure crisis james will caucus our county treasurer i've heard speak many times at many venues and he says over and over they're only new orleans had great station for foreclosure and abandoned homes and we did and he always adds new orleans had katrina we had the banks the banks in this case the banks the bank the non bank mortgage lender was homecomings financial which had some sort of affiliation with g m a c which ultimately entered into a settlement that resulted in ms mcnerney being intitled to have her loan canceled the lender never told us that we never learned it until after she had already been driven from her home by the conduct of the lender in this case the lender can try to do a one hundred list of the things that lenders do to trick people into loans they can't afford in this case i wish to emphasize and i can't emphasize enough miss mcnerney was honest all of her conduct was legitimate she had to legitimise reasons for seeking a refinance one because she was ordered by her divorce decree and the other because she needed more of fordable payment she made those reasons very clear and if she couldn't get over or she could afford the loan that was clear to homecoming that was clear to the broker homecomings acted in the under writer desktop underwriters fannie mae's automated desktop underwriter homecomings affirmatively presented this false information which dollars even with the overstated income and the overstated assets the underwriter reported as a risky loan the loan never would have happened it had not if it had been correctly underwritten homecomings had an affirmative duty under truth in lending to disclose the material terms of the transaction and i wish to emphasize it had a duty to disclose the material terms including that she had a right to rescind it had an additional duty documents to the fact that rescission it did never it did not disclose it provided one document and that document was tucked away in a seventy over seventy page stack of documents and if she had ever been able to find the document and understand its import it didn't matter because the deadline to rese watched december thirty one it was printed right on the document that the deadline was december thirty one we're reviewing the order of the district court yes which affirmed the bankruptcy court's decision disallowing these claims that's correct your honor yes which is are still reviewing what should we be focusing on here you are speaking from the get go as if we there was no prior proceedings but pro oh yes employers you'd like to hearsay evidence and in fact decided important issues based on the hearsay evidence of sarah lay through the bankruptcy court and sort of the district court and so only what was in the bankruptcy court and the bankruptcy court based its ruling on the hearsay affidavit of sarah lay through and the district court tracked exactly a as a fact that same hearsay evidence from sarah later and this just this is critically important with regard to important matters including that the consumer sales practices act claim both the bankruptcy court let me interview with the consumer sales practices act my understanding was you are making those claims for the first time on appeal did you present your consumer sales practices that claim to the same district  you did oh yes at what point are it was part of the claim itself it was written in the claim document and it was argued and decided upon by the bankruptcy court judge you're arguing that the it applies to homecomings conduct because of a two thousand and seven amendment is that right it applies to homecomings conduct in two thousand and nine when homecomings filed a second foreclosure case on a loan that had been rescinded five years before and you rely on the two thousand and seven amendment case called powers but i didn't see that having been presented to the district court what argument when i presented was what was discussed in the bankruptcy court and it was amended in two thousand and seven and the fact that the lender in gauged in debt collection on a on a loan that had been rescinded was argued as having violated the c s p a and it certainly was argued in the complaint or in the counter claim filed the net complaint i didn't argue the specific case of powers but i argued the analysis and then  so the hears so the hearsay is important for because the bankruptcy court argued that the andersen case was on the prevailing case on the grounds that opinion the court said i don't believe the bankruptcy court did rely on the way through the declaration in any of that i'm not relying on any factual assertions in the way through a ration so how did the district court rely on hearsay  did because it also affirmed the bankruptcy court ruling that the andersen case was the relevant case and the andersen case the ohio supreme court case that interesting case ruled that a service or can't be held liable than a service here isn't covered by the consumer sales practices act so it had to have concluded that homecomings was a service or and homecomings never was a service or the transfer of servicing which is just a document presented by later was dated two days before this loan ever took place this loan actually took place in january three  thank you in two thousand and fifteen the bankruptcy court correctly determined that the sixth cause of action before this court failed as a matter of law for a variety of reasons and one year ago judge engle mar in the southern district affirm as a result the only appropriate outcome is for this court to affirm the decisions of the bankruptcy and district courts first as relates to the t look line judge angle myer's interpretation of paragraph thirty six of the appellant's two thousand and four counter claim is entirely reasonable a claimant cannot plead a claim when that claim only comes into existence upon the occurrence of a predicate event homecomings purported failure to rescind the loan could not have occurred until twenty days after june sixteenth two thousand and four therefore it's impossible for the damages claim to have been properly pled on june sixteenth since the damages claim was not played until two thousand and six and under section sixteen thirty five and six hundred forty of title fifteen of the us code or untimely and should be disallowed second as release the negligence claim the appellant cannot identify any case law providing the lender has a special relationship with a borrower which creates the requisite duty of care without the existence of that specific duty from home coming so the borrower is cause of action cannot exist and again the lower court decisions must be upheld similarly the disallowance of the cause of action for intentional i make negligent misrepresentation relating to the originally origination of the loan must also be upheld the never interact with one another before the closing so it's factually impossible for there to been a misrepresentation by homecomings to the borrower moreover there is no basis to establish a duty to disclose from hong comings to the borrower as no specialist ship existed  parties therefore any loan or original be average any loan origination based claims against homecomings similarly fail the nonexistence of an agency relationship between zero and c and homecomings is also a non debtor brokers actions in the words oh mc's actions the appellant only makes conclusory allegations about any concerted action between homecomings and i when see such allegations lack the requisite concreteness to sustain such a cl in addition to the extent the borrower argues that homecomings foreclosure related actions also serve as the basis for a conspiracy claim that palin cannot overcome the implicit belly of the witness immunity doctrine which protects homecomings from liability based on factual case which is sought by both the bankruptcy and the district courts the back court held that actions at issue constitute collateral services necessary to effectuate a pure real estate transaction therefore homecomings allege wrongful acts employees under other publication or wrongful intrusion theory the facts do not adequately demonstrate that private information was disclosed to the public at large nor to the facts support an intrusion on private activities according to disallowance of this cause of action must also be upheld in conclusion the appellate may disagree with the decisions and act on the proceedings below however there is no valid basis to develop disrupt those decisions the appellant has not demonstrate to this court the bankruptcy court to respond to the statement that the claim is not right obviously the claim became right twenty days later i would also like to emphasize in sixteen forty fifteen u s c sixteen forty states that would be sixteen forty eight a three and in the case of any successful action to enforce the foregoing liability or in any action in which a person is determined to have a right of precision under sixteen thirty five the cost of the action to get the ridge with regional attorney fees as determined by the court so she heard it in her rescind at the same time that she rescinded it was not impossible she did it and she clearly stated it and she clearly stated what the lender should do and she clearly asked for damages for the lenders failure to do it and the lender had it in its power to avoid all future damages the lender could have made it moot congress has provided a roadmap in sixteen forty fifteen your c six hundred forty this should have been and incredibly simple case this lady should not have been dragged through litigation since two thousand and four through five courts just to try to exercise her right to rescind under sixteen thirty five this should not have happened therefore because she followed the rules because they did not follow the rules because they drove her from her