thank you to your honors and maybe implored arthur try v s o appearing on behalf of the appellant's of walking in and jeffrey garcia the reason we're here today and i do wish to indicate to the court i would like to try to reserve three to five minutes of my argument at the end of this case is before the court on two points the st is what i call the easy point the one that's the easiest way for this court to make the right decision and reverse and remand this matter back to the trial court and that concerns the leave to amend issue which i'll get to briefly the nd of these takes a little bit more time but i still think leads to the same result reverse granted therefore it operated as a dismissal but when it comes to looking at this of refusal to grant leave to the court needs to be should be reminded of the fact that review and must be viewed with great suspicion now counsel's going to argue well you had you had two trucks and you were out a nd a minute complaint and you've got you had more than enough chances to try to do that there is nothing in t instructive and one reason why i bring it up your honor is because of the fact that this is a case that originated in california courts wells fargo as is its tactical practice tries to get these cases removed and in this case successfully so i can represent to the court that this complaint that is the subject of our dispute is not the st it's not my st rodeo into litigation against wells fargo litigation against lenders that  these predatory lending practices that have disenfranchised homeowners caused them to lose their homes while being lured under the false representation that they're still be considered for a home loan modification at the same time that dual tracking is occurring which is expressly prohibited under substantive law the homeowners bill of rights which is codified in the civil code in california which is a flexible still in this that that's not a procedural issue that's a substance of issue i have never had a successful demur to this kind of complaint in the state then this is the st time it's ever happened and we contend that wells fargo shouldn't be the rich by forum shopping they shouldn't be allowed to get out of having to answer no again we're not talking about whether they should win or lose but whether my clients should get the chance to prove their case because that's what they've been effect in this particular instance in fact if the court looks at the reasoning we'll get more of that in the in a bit but the court gets to the issue of the substantive reasoning behind the complaint the choral file that the standard that was  title two or rd version and do your core the district judge greater discretion under these circumstances certainly certainly the issue is an abuse of discretion standard your honor but as i indicated indicated before in this and this body's own own previous words denials of we to a man are strictly that's the word strictly reviewed so i don't know how much deference  there definitely reviewing for abuse of discretion and if that's the case i want to know if you can cite me and in that circuit case where we've said that complaint complaint was an abuse of discretion i could not find any such case nothing that's gone up on appeal and been a published case but if the court looks at both alvarez and the wet either there's no there's neither one justifying it nor disapproving of it or else i'm certain my esteemed counsel would have been would've been happy to bring it to the attention of the court so we're going to essentially a situation of st impression at the very least in terms situation it was represented to the court by me specifically to the court that we have the ability to further allege in more detail although although our position remains that we're going to get to the substantive issue shortly that there should have been decided to stand by its senate in our opinion that is an abuse of discretion under both algorithms and under let us both of those cases stand for the proposition that if this this case would still exist the only reason it didn't exist is because it doesn't exist because wells fargo forum shop got itself in a federal court and got it got this matter heard by a different judge and obviously there's which finds itself named not one but two appellate cases we cited is that they engaged in tool track something expressly prohibited where they literally at the same time that they are representing to the home owner the tone owner that yes we're looking at your home loan we're going to look at loan modification to help keep you in your home you know and they're giving that kind of pitch to these aggrieved homeowners simultaneous behind the scenes  when you said you wanted to do a rd of comply did you attach that complaint to request so the court would see what else you were going to a i could not your honor i offered to have the court continue the matter and allow us to and allow me to either further brief the issue or provide a proposed rd amended we received the tenet said at the day of the hearing we did not receive an advance tentative so i had no notice that the court's tentative was to do this or else of course i would have done so i offered to do so the court simply ultimately after hearing arguments that it would take the matter under submission and my my thought was that the court at this point would have at least asked me for that it did not it simply stuck by the senate in my view and i think the court's brings up a good point that would have been a simple way to for the court to evaluate the possibility of amendment you know are we going to be doing this will be six motion another time or not that would've been possible that might have been a good middle grant to say i'm sustaining and you know i'm going to you're going to show me your complaint and i'm going to have to look at it before i decide to give you leave to amend i don't know that's technically within the within the with within the of r c p but i certainly think it's a good practical suggestion and that would have possibly i think i'm i represent to this body as i represented to the trial court and your judge gerald that we could address these deficiencies it's not like the facts don't exist this particular issue and we're getting barely touched on the substantive issue but we think that the twenty six was an appropriately granted that we had adequately put these allegations that my clients not once but twice submitted a complete loan modification the fact that mr curtis and his client wants to argue that the nd modification was incomplete itself shows that we have a dispute of factual dispute this is not something that would be subject to a twenty six dollars we adequately pled it was complete and they're asserting it is this case should be permitted to proceed forward and and the beauty of it is that the court of the f r c p allows mr curtis a remedy down the road that would be fair to my clients i mr curtis's case is so strong and so are refutable and there really are no travel issues we all sitting here today know exactly the vehicle that he should be employing and that is after discovery is done he brings his rule fifty six motion and we and the court makes a call on that and the chips fall where they do but that to me at the very least gives my clients the opportunity to present their case ironically both cases for oral argument today at both involve due process of the end of a different in this case my client's evony and had the chance to do discovery a lot of what date app can get to prove their case they can't get until we get to discovery by wells fargo heading us off at the pass t a western metaphor they are preventing the very discovery that would allow us to have more detailed allegations were basically trying to figure out and trying to assert fraudulent conduct that by definition litigation so that we have a complaint and we're in the federal court or a notice pleading jurisdiction wells fargo is well aware of what it's what's being asserted against it they should be we should have been given at the very least leave to amen d and frankly i think the twenty six motion shouldn't have been granted it should have stood they should have had the answer we do discovery and down the road if if mr curtis and its clients believe that it got that strong of a case or r fifty six motion is a far fairer way to determine that because of the released now we're dealing with evidence and discovery and the parties about a chance to do to do one and gather what at that point at the very least were closer to my client's getting to process having their complaint dismissed without leave to amend especially where i've made an affirmative representation to the court that we can add further allegations frankly ones that border on turning us into a code pleading situation we can do it we can amend i represent that to the court and i believe the trial court was wrong in denying that i i'm sorry i want it over i would ask the court for given the some of the questions  law that's it that's a very limited and specific thing you have wrongful foreclosure a tort claim for monetary damages and wrongful foreclosure which is kind of an equitable action to set aside for a closure sale but neither circumstances california law e explained is now before the california supreme court they're relying upon i think the most recent economic loss court rule case that before the california supreme court the intermediate court of appeal in that case concluded that there is no duty because predict what the california supreme court is going to do and the issues now before the california supreme court i don't think it would be wrong if the point want to stay the case pending the outcome and change to see what happens finally just very briefly with respect  may be somewhat instructive nonetheless with regard to the issue of believe to him and i agree with mr curtis's statements that there isn't a bright line but i i disagree with the conclusion that in this case it was appropriate to do we we had no ability to even address that issue nor was it even discussed i've never seen that i've not personally ever seen that done any other state of or a federal court at the six or demurred stage but nonetheless i think as i said before i think that would have been appropriate i represent two clients that are mother and a father and they own a small business and the we're talking about people who are facing a foreclosure who are behind these are not people that can afford me to be doing extra work because of the theoretical possibility someone might ask me to do it certainly if the court had asked me to do what i would have done and and the court would have made a decision as to whether or not they were sufficient that didn't happen i don't think my clients because of the fact that they can't afford to just do every single thing possible conquer contemplate of all that that should be held against them moving on to the actual allegations mr curtis both in the and today has talked about these violations of the homeowners bill of rights as being technical violations well st of all they're violations but secondly they're not technical at the crux of our case it is our client's twice produced homeowners homeowners loan modification pack wells fargo violated the homeowners bill of rights it lied to my clients both d by a firm of misrepresentations as well as by concealment we played all d those things and we believe at a bare minimum we should be given not appeal that decision but we should be given an opportunity to try because wrong was done against my clients by wells fargo as it is and against many people and they shouldn't be allowed to get away with it without i submit and take the court for