the second issue is that the washington's are not bombed by the move out agreement as a release of all of their clients so i asked this court today in reviewing this case to know go to deny bank of america's twelve p six motion interim in this case back to the district court to allow my clients to amend and supplement their complaint in proceed to a trial on the merits of their lawsuit i wish to reserve five minutes compliant enumerating numerous facts that describe the intense that led up to and surrounded the signing of the move on agreement as well as the wrongful foreclosure that bank of america undertook against the washington the washington's further based all of their claims in their comply upon the facts that they stated in their amended complaint in reviewing the washington's complaint to determine whether or not it states a cognizable claim this court much has the following standards first his court mu ghana and in re louisiana crawfish producer second standard that the court of appeals should apply in this case is the twamley standard which does not require a heightened fact cleaning of specifics but only enough facts to state a claim by providing the defendant fair notice of what the claim is and the grounds upon which it rest didn't satisfy this plausible standard clambered clarified further provided guidance as in terms of applying this standard of plausibility but it went on to state was that asking for plausible grounds does not impose a problem billet a requirement in other words to washington's or not required at this point at this stage in the proceedings to prove that they're going to probably prevail you only need to show probabilities and they're right and is correct here i mean we're pretty from a with a i don't want to cut off her well prepared argument but if you want to move on to basically be on the use of those standards i think we know what they are and save you some time task for the court to use that the first prong is that the allegations must be accepted as true except for legal conclusions oh moustache supported by factual allegations and second that a flock again a plausible claim must be its common sense and so and looking at the washington's compliant you have a situation where they had applied for a loan modification on their homestead with bank of america who at that time they believed held their date of trust and the promissary note for the mortgage on their property and after numerous communications with bank of america t telephone calls to faxes the washington's received responses that follow up later check back later a status hasn't changed the loan modification is still being processed and those were the responses that they received up until the time when their property was foreclosed upon in fact the washington's had received both verbal notification in written notification from bank of america that it this long as the loan modification was in process they would not foreclose upon the washington's home and that's what the washington's were relying upon and they were waiting patiently to hear a result from bank of america they never got that result from bank of america what they got was a wrongful foreclosure on their homestead and even though bank of america knew that their l modification had been approved they never communicated that information to the washington's despite their numerous requests in numerous communications about the status of the loan modification and  the washington's home step was foreclosed upon they received a fiction notices from bank of america's agents us stating that the eviction was in process and they needed to vacate the home and the next step action was that agents on behalf of bank of america provided the washington's with a move out agreement and requested that they signed it and provided them with an inducement a monetary inducement that if they vacated the house within thirty days they may be able to give them some money and that they needed to do so under threat of a makeshift so at this time mr washington had had major back surgery and was having mobility issues they had not heard anything about the modification they believed bank of america's representations and reasonably assumed since they were being presented since their home had already been foreclosed upon and they were presented with even action that the move out agreement that they should sign it because not to sign it would be delaying the inevitable so they went ahead and signed it at that time it is a it waves the language in the move out agreement waives allegedly waves certain climbs that the washington's head and that's what's disputed in the washington's comply and the problem with the move out agreement is that it's a question of fact whether or not they waived any of those clients and so those facts must be heard and determined by a trier  fact at a trial on the merits and that has not happened because their complaint was dismissed and so in that connection is your argument that the women that mean what if that is correct our argument is that the agreement is ambiguous there's issues of conspicuousness and the in greek the agreement made may be determined it to be invalid or employed and not release any claims that the washington's have but we don't know that until we get back to the trial court and have a trial in this matter ordinarily waiver is a question of fact and that this is a holding that was determined by the texas supreme court in the tenneco case the washington's have challenged both their intent at the time they signed the move out agreement and the substance of the move out agreement and they've challenged it by the facts that they've alleged in their complaint and those facts go directly to the circumstances that are surrounding the move out agreement they go directly to the intent of the washington's at the time they signed the move out agreement and they go directly to the knowledge that bank of america had at the time it pressured the washington's into signing the move out agreement but had not shared with the washington's one about  well that speaks directly to section fifteen forty two of the civil code of the state of california and the language of that statute is directly quoted in the move out agreement and with that language says is that a general release does not extend to claims which the creditor does not know or suspect to exist in his or her finger at the time of executing the release which if known by him or her mean in a creditor must have materially affected his or her settlement with the debtor and so would this language of this statute says is that the washington's been the creditors of bank of america who are the debtors in this particular and applying this particular statute could not have released any future claim or any claims that they did not know about under the language the clear language of the statu another problem with the move out agreement being ambiguous is that it uses generic terms of creditor and debtor and historically in this specific business transaction between bank of america and the washington it's the washington's had been the debtors in bank of america had been the creditor but when you look at the language of section fifteen forty two by using those generic terms it's ambiguous who they're referring to in terms of which party is releasing clive's and so my client's position is that in terms of releasing any crimes they would have to be the creditor because it's the creditor who is owed the obligation by the debtor and so it's the creditor who's going to be releasing client particular argument isn't going to get you for lunch or touch or anything else that you want to talk about on the move on agreement to let the paragraph directly below section fifteen forty two states that later discovered facts and shall be released in other words if the washington's discovered any additional facts after they signed this move out agreement those claims arising under those facts would be released in the release would remain valid and that is contradictory to the language and fifteen forty two and being contradictory and being ambiguous those ambiguity should be construed against bank of america and in favor of the washington's because bank of america is the party who drafted the move our agreement in the butler case the court stated that when a party signs an agreement containing a waiver of it's right with respect to a known climbs under civil code fifteen forty two the scope of the waiver of unknown claims remains a question of fact and that a court is allowed to ascertain what climbs the party intended to release and furthermore that extr evidence may be considered not to vary or change the terms or modify the terms of the move out agreement but to ascertain the intent of the parties and the only way to do that again is to go back to the trial court none of that is in the pleadings or in the briefing that is before the court today if you review the first amended complaint which is the operative pleading that was the subject of the motion to dismiss and the dismissal order there's no a fraudulent inducement here whether or not that's been properly played or preserved let's go get beyond that for the moment but the bank did mislead did it not by by not disclosing modification had been approved you're on your going back to the pleadings yes she does allege that they were approved for modification but that is simply not the case i'm not sure how familiar the court is with  modification agreement is there anything in the record as it exists now an appeal you know that would contest that allegation of up to twelve b six level i do not believe there's anything in the record that would contest that because we were limited to the pleadings as they exist and so therefore we were precluded from introducing new information however i will refer the court to the move out agreement itself which states that the appellant waived all of their rights with respect to the servicing of the loan with respect to the foreclosure of the of the property with respect to any affection proceedings with respect to the property itself with respect to personal property that was in the property and so we've taken the position that the release was unequivocal and complete and as a full waiver of all of their claims and the court agreed and i will point out that the  and to be honest i was i was prepared today to come in and address the directs issues that were raised in the appellants briefs and would you like me to address that you mean you can address were ok say over go out of the record no i just like to say that i have the washington's filed an original complaint with seven causes of action and then an amended complaint with seven causes of action nowhere in either of those complaints was there a claim for economic depressed and we moved to dismiss the complaint the first amended complaint based on the release itself and we also had alternate grounds for dismiss including that the claims of fraud were not pled with particularities that there was no wrongful foreclosure because the property sold for more than sixty percent of its fair market value there was no breach of contract because they did not identify specific provisions in any contract that they alleged were breached and their default in and of itself acts as a waiver of their claim for breach of contract  we had a statute of limitations argument and we had numerous defenses that we raised in our motion to dismiss and ultimately the district court relied primarily on the move out agreement and construed claims including the fraud claims so if you read the move out agreement they agreed to a full release of claims whether existing at that time or existing and  asking the agreement itself was written in plain language the release was in an unequivocal in its terms and was not ambiguous and today is the first time that i've ever heard any argument that the the agreement itself was ambiguous the release applies regardless of whether the appellant's later discovered facts that were different from what they knew at the time that they executed it and that's the whole purpose of a release you get a release to say ok you know you're signing this agreement you're releasing all of your claims i mean without that release what is the purpose of the agreement itself acknowledged and agreed as part of the agreement they were that they were freely and voluntarily signing it that they had no other inducements that they had an opportunity to consult with counsel that they read and understood the terms and they received consideration and so the district court determined that the move out agreement constituted an unequivocal waiver of all of their claims and rightfully dismissed the first amended complaint and are there any questions or thank i would just like to point out that in the in the brief that i submitted on behalf of my clients i did bring up the fact that the move out agreement is an unconscionable agreement and that there was no meeting of the minds in terms of what the clients were releasing at the time that they signed it also i would like to point out that this case is before this court and so did no review in this court is not bound nor should it consider the decision nor the reasoning of the district court in deciding this matter the foreclosure that was done by bank of america it has been conceded by them that there is an issue of the chain of title because at the time that they foreclosed it they have they were not able to show a chain of title at the time and foreclose on the washington's home and then after the foreclosure they transferred the title into the v a a year after that the v a rejected the title and sent the title back to bank of america bank of america never disclosed this information to my clients instead what they did without my client's consent or knowledge was they play they took it upon themselves to act as the washington's agent and took the house and placed it back into the washington's name and then foreclosed upon the house a second time and the second time they did not provide a move out agreement nor require any release because according to bank of america they had already obtained releases of any future climbs so they felt that this point they could do whatever they wanted and they were protected by this release that behavior is unconscionable and it violates fundamental public policy it would be a miscarriage of justice for this court to determine that the washington's waiver applies to all claims and that and to forbid them to amend their complaint to add any new claims or to supplement their compliance based on the facts that they've listed they've raised the issue of their intent and that is sufficient to put bank of america on notice as to what their claims are or and it's also sufficient to meet the problem of the plausibility standard which is that these facts or believable the supposed supported by signed public records which are the substitute trustees  and conclusion we were expect the requests that this court determine that the washington's are not only correct on the law but that they're also seeking a just and equitable result which is their day in court that's why they filed their compliance that is the only way for them to obtain appropriate civil redress for and their claims therefore we respect fully request that this honorable court of appeals in reviewing this case to no vote deny bank of america's twelfth p six motion and remand this case back to the district court to allow the washington's to mend and supplement their