young's complaint that was brought out of the home affordable modification program this matter had been before the court a couple of years ago and as you know remanded back on three of the original counts of the complaint we have count one under contract breach of district court judge after having been briefed on the matter and in considering the defense most recently judge found that there were no material facts at issue on all three of the counts and therefore moved to dismiss all three the equitable complaint and therefore summary judgment was not proper and the matter should be remanded back to the district court for a trial on the merits of getting into some of the specifics the  dots well fargo bank and the homework residential for me known as american home or mortgage servicing company had contended that this young breached almost from the beginning the operative contract in right when you talk about the damages on the contract well we actually have in the brief we mentioned that the as was originally argued before the court on this young did stablished damages for one prior to litigation she had to engage in legal counsel in order to attempt to resolve the situation with the defendants and that was not successful she testified that her legal expenses were at or about one thousand dollars further out or there is a a link between the ninety three a claim and the contract claim ninety three a claim and i do cite the cases state that a a it goes beyond the traditional damages that worldly would be very restricted in terms of what they individual can recover for controversy don't prevail in the ninety three a claim do you then agree that the damages that you say are linked to the ninety three a claim are not going to be available on the contract claim because they haven't been argued in  then i'm going through the whole thing on the argument and i don't see any reference to the damages in tow maybe when i get to the discussion of hundred ninety three day so how can you be raising challenges to this conclusion about lack of damages on the breach of contract when you just don't mention it in the  the way that this has been argued for the court past which i will continue today is that these two counts are late as the case that i cites of the cases that i cite of the ninety three a claim they are vague it could they it creates new claims that would traditionally not be considered counts under contract and or claims under contract so with that be an argument for why you have an organ about there being damages if there's a valid ninety three a claim i'm asking on the contract count just looking at that amount the only argument you seem to make is that there were material factors to whether there was a breach not that if there was a breach there were also damages just on the contract you don't even know you don't mention it until you reply brief and when you mention ninety three on page twenty six the reef but with respect to damages you know you don't get to that until you reply brief that was because we the the dates of the payments are stablished by the record when we argued that the two things you know you're out of the community to my one was that under the payment under the defendant's own criteria it would be considered late unless it was these thirty days of you know the due date that was one item and the other is the admissions the january thirteenth letter that said payments were not timely there was uncontroverted facts from the defendant's own records where  we made it clear that the dates of the postings were there's no question of fact about the days of the post we also made the argument for the court i believe that that one of the posting the due date was actually a holiday it would've been impossible for the  record guidelines and there's a provision in there that says that seems to say anyway that payments are timely if they're all made before the end of the trial period which would be january the statements that were made both to miss you issue in that in terms of damages that my client has suffered pacifically in ninety three a also of are already on the contract claim that would be the expectation the court found  but there was no question in the tiriel fact because that we did not produce an expert in regards to this years to counter her testimony but it is our contention that this years on her own testimony contradict yourself for example the district court judge stated that that she made it that she was the most knowledgeable about the provisions of the half program of what its requirements were but she testified that she couldn't recall any specific training all of the h program or its provisions and that they didn't have any evidence in fact she testified that the log entries could not interpret it completely by irv she had to use some speculation because there was no uniform training while of the employees of the fed it's what those entries met there was no standard form of radiation and she also testified that there were many many bank employees who did not work meet their actions in regards to representations that were made to this young on the agency issue that's important the district court judge found that wells fargo had not been sent a ninety three a letter but that  actually for the documents or their legal department mysterious the defendants want to testify that that that document would have gone to their it would have gone to their correspondents aren't showing that there's a complete lack of a mechanism whatsoever to address any good faith effort by this young in this case to forward a demand to try and resolve the situation or having to resort to litigation the record here is very clear in regards to two huge organizations giving mixed messages to miss young the about whether she reached over the she didn't reach when it came to breach notices were in writing by the right system which missed here's  did not understand had no input into actually running it the record is clear that the the defendant's own documents show the computer system sent out a notice of error automatically but that the employees who actually worked and spoke with silva tory said no that was a mistake that was not done properly it should have been done but they never would put that right in the overall all the facts in this case going back to two thousand and eight when this young attempt at a forbearance removed it was to just first begin with the court's questions to opposing counsel regarding the waiver of the argument pertaining to damages and agree with the court that indeed there were two bases upon which summary judgment on count one was entered one of which was that ms young failed to produce any evidence that she was damaged as a result of the the purported breach of the trial in the plan and the court went to great lengths to talk about the lack of the type of that in she needed to produce fail to produce and in the brief to this court there is no mention at all as to why those findings were incorrect there is a mention because they looked carefully i want to make sure i was getting it right there is a mention at the dunn's brief i think it's at page twenty seven where she says that there was evidence by way of her testimony that she sustained damages and she cites to her deposition testimony but in that deposition testimony what she says is i was damaged because i had to make three payments under the trial payment plan and i had to make mortgage payments from the beginning of my mortgage those are not the damages that she has to be able to show in order to prevail on the t p claim she she has to be able to show that the financial documents that she provided under the hamp guidelines would have resulted in an agreement that was different than the permanent loan modification agreement she received in june of two thousand and ten she presented no evidence in that regard she presented no evidence that the monthly payment amount in the permanent the amount of remit that she received was any different than any other agreement she might ever see if there's no evidence that she was going to pay interest rates that were higher no evidence that she was going to pay late fees of any kind since those were waived there's just simply nothing in this record to show that as a result of the failure to failure to perform and the court touched upon that a little bit i would just say that the district court correctly looked at the trial in a trial period plan and found that the the the a term to make the monthly the three payments on or before the three dates that they were due was a material term of the agreement if there were only three things she had to do and that was make the payments on time provide the documents that were requested and answer record i question whether or not that guideline is the actual guideline that was in effect at the time this agreement was entered into because it was early on when they have a program just began so i can't testify i can't tell you because i can't tell you whether or not that's legally correct i can only tell you what's in this record and that is mishears who said the payments run timely and our practice at the time is i can put you back into him he kicked out of the program all we can do is try and work you up for another lo to the ninety three a claim i'll note also i i did hear attorney others say that she did have evidence of damage that she had to engage legal counsel but i will tell you the record will show this court that the she did she paid it to him for services provided in two thousand and nine this temporary payment plan was entered in two thousand and ten two thousand and ten but the breach the contract read but the but the record is clear not that she paid credit report and she didn't produce one what's the difference between saying it was ruined and claimed it was wrong well i think she has to produce evidence that it was ruined but i think there's another question is can she show or did she show that her credit was purportedly ruined as a result of failing to provide her with a hand modification agreement on feb one of two thousand and ten and instead providing with a permanent more moderate in january fourteenth of two thousand and ten that's that's the measure of damages here on the breach of contract claim now and she nine then refused to a permanent loan modification in two thousand and that would have allowed her to start paying content and work so how can she show that her lack of her credit rating has been damaged by he's developed as opposed to herself know just the money we're not permissibly able to just as a common sense of the matter that there must be a reason the people would like to pay on time i mean it's it's not incentive structure for getting people to pay on time if whether you do or not it doesn't matter because what you get a no better than you got from the bank well i think here's the thing under hand you are entitled to if you if you comply with the terms of the trial period plan you're entitled to a modification but in a situation like this when your mortgage is securitize the investor may not allow a traditional loan modification so if you don't comply with a trial period then you may not be entitled to any other loan modification here the defense were able to provide her with a permit traditional loan modification agreement because it was allowed by the investor guidelines and so you know that this is a benefit to his young but i think in the universe of a loan modifications there would be the difference that makes sense now in ninety three a claim with regard to w it wasn't it she actually hired a crawly to help her with the forbearance agreement that was back in two thousand and nine and then he did nothing further for her in fact she turned around then hired terry to sell the produce the paralegal and he didn't charge any fees and he was the one who massachusetts is quite clear that in order to sustain a ninety three a claim they plaintiff has to be able to show that she sent a demand letter to each defendant that the demand letter specifically identifies each defendant that the demand letter specifically identifies the conduct that each defendant did that violated the statute and we have none of that here and so summary judgment with regard to wells fargo properly entered on ninety three and with regard to homer we have another waiver nature the court and that is that there were two bases upon which the district court entered summary judgment with regard to the ninety three a claim against homework and that was that none of the alleged acts that were set forth in the january proximately caused by homeward and here in our in the brief in the opening brief once again there was no mistake not any developed argument whatsoever about why as to why the district court's finding that the acts did not violate the statu were incorrect or that basis summary judgment can be affirmed on the ninety three a claim and with regard to the issue of proximate cause and damage just the one claim that is made by counsel with regard to the ninety three claim against homework is that he showed even if he didn't show there were any damages in the form of impact credit rating being dropped or equity in the home being lost or having to then pay increased interest rates on loans that she may obtain in the future which is the universe of damages that she claimed he says even if she didn't show that massachusetts law light allows him to recover because he can show there was loss in the form of an invasion of a legally protected interest and i submit to the court that his reading of her is wrong the massachusetts supreme judicial court has found that it is not sufficient to sustain and ninety three a claim based on a legally protected interest that is what her she now says and this court recognized that in the and so for that reason the night because there is no damages here there have been shown by evidence the summary judgment with regard to the entry a claim against homered was properly entered with regard to the equitable relief claim this court the last time we were here recognize that the equitable claim is actually derivative of the breach of contract in ninety three a and because it was and cannot sustain those claims she cannot sustain or equitable relief this property without paying anything since january of two thousand and ten at the expense of the defendant to continue to pay her property taxes and her insurance and that is not a person a plaintiff that comes to court with clean hands and because of that she is precluded from