in this area where there are disputes between surface and somewhat confusing language in the statues and i looked through the records and i came across at least what i think are six ers are issues find that particularly offensive to due process considerations it's not concededly the court the trial court has the ability to change within certain boundaries the procedures for decision a conditional tender without a receiver for well that's your physician i thought i heard you say that every circuit and ours is where the cases that i've seen well which one it's true to say that i've never seen a case in my research i've done a lot of research where there was ever require months at the bar tender before i understand it but that's a fairly different statement from saying that all circuits including  last couple years probably had about fifty of these rescission cases and nine out of ten people are able to refinance as a practical matter you've got to get a credit clearing letter and another issue that i had which is the second issue is get relatives refinance for them and therefore it's for somebody to say well i don't have the money in the bag and it is really quite unfair secondly in order to refinance you have to only one case in american law where ever attended was asked for is the right to have the rescission issue decide but i think you could look at it that way you could fall tomorrow and you could say well you should've you know but i mean after all  of the matter is i give you the case is that the defense is owned by both the trustee and the individual and here we have we have a foreclosure case going on it's in the second circuit court and when i'm doing the house a sixty two where there is a in effect on the on the estates property the matter estate but most courts are going ahead and saying well it just doesn't apply but it's inconsisten obligation to record the release of mortgage that is what the district court has said in hawaii in the historically be it and the statute commands the rescission to work plenty to pay back the bank this is not a matter of equity you know the mortgage and probably about fifteen thousand dollars in clos the capacity to rescind and they don't receive what they wind up doing is they wind up spending two or three years in the property pain nothing and then it's sold to some third party that's foreclosure that is not their right under sixteen thirty five their right under sixteen thirty five is to show up with the money and get their mortgage now the statute neither tender nor do they offer to tender one dollar to anybody at any time never they never asked the district court for more time to do anything they never asked the district court what the amount was although the record has it has been less than one hundred forty thousand dollars they never offer to do that which they are required to do order to take advantage of give me rescission i will pay why should we have a trial what's the purpose of such a trial i mean there's a lot going on here that we need the united we have a trial i think the case law says no if you can't take advantage of a favorable ruling no and signed that mortgage she got a twenty five percent interest in the house or the purchase money more it looks like a duck that feathers and bills in class it's got she didn't own it before that the district court does not have to go through with the trial just for fun and that's the point here but you have to understand that what the teller plaintiffs want they want the delay they want to save their house i respect it i understand i think we all do if you're faced with the threat of losing your home you're going to do what you have to do but they want the way they can't they have no money to send them the capacity they want the three years that's what they want they could be in foreclosure get the benefit of the a third party's guy i'm not sure what if anything could be gone in terms of the case but i think in seeing our case there also was the same issue and there was there was no because allegedly there was a pending damage claim here there's no damage because the damage claims were barred by the statute of limitations and as a matter of law none of bank of new york was not wyvil for refusing to record a release of mortgage in the absence of a tender or offer to tender in accordance with riata so unless the court has questions of me i'm through with my presentation thank you very much card i'm stephen showing on the attorney for being seen mortgage bank and i won't repeat the argument that mr bernstein very few made obviously we agree with his position and we think the issues have been brief i would just like to point out a few things deal has to be strictly construed even when you are dealing with unsympathetic plaintiffs plain just consumers have said this is a windfall we can default on our mortgages we don't need to make any payments and when the lenders foreclo contemplate that the lender is going to tender the return of any property given within twenty days and to cancel the security interest whereupon the consumer is going to tender the return of the net loan proceeds that's a very narrow in motion for summary judgment as we know any motion for summary judgment the parties are not entitled to rest on mere allegations or speculations as to what will happen they are required to prove or to come we can't repay the loan we're not rich we don't have money in the bank still it's not recession it's just not for rich people we have but we have a defective motorbike to cancel and somehow this gives us the right to  court and under those circumstances they did not meet the requirements of rule fifty six and a duty any kind of evidence to show that they were entitled to any kind of relief and on that basis and i agree with your honor that the court has the discretion to s you're not entitled to receive but i'm going to give you sixty days anyway show me that you can tender show me some evidence that you can tender the return of the loan proceeds otherwise i'm going to dismiss the case and when he fails to do that and he failed to follow a motion f please the court mary martin on behalf of the bank of new york i will be brief and only speak to one of the issues that you have raised and that's the question of moving since i do represent the bank i know what happened afterwards in the lower court and yes the foreclosure did go forward following judge king's ruling and the property was sold to a third party who has closed and paid the bank has received some money and there is a deficiency judgment against  now about of the daughter obviously not against the parents since they were discharged in bankruptcy the question then becomes is it or is it not moot as you so simply stated it we believe it could be moot but there would have to be if this court chose to rehearse there would have to be a determination as to that exact amount owed and whether there was any surplusage in the actual auction price for the property the property sold for approximately one hundred fifty five thousand dollars i think likely that it would not mean that any surplusage would go to the on a motos but that would be that that would mean that  clarification would be need to be made on the record as to whether there was anything in there therefore it has not moved unless the court has any other questions for me i will stand by the arguments that my colleagues m i want to go right to the heart of the issue that i told you before throughout the united states in the federal courts there's no obligation to tender until there's a recession for example d c circuit brown versus national permanent federal same of the security interest finally our fourth circuit three ninety ok this is not the fourth is the for certain louisiana three ninety seven second thirteen forty seven although creditors forfeiture of long procedures condition until the security interest is conditionally or otherwise with otherwise terminated then obviously there can't be a requirement of tender before even before the the other point i want to make is that of course these are harsh remedies now i have to tell you frankly that if i had been in ny state skies i would have thought of a better way is to guard against predatory lending practices that are not in the united states true and i have to concede to you that there's very few cases in the truth in lending fields there recognize the truth of the bankruptcy code that one it affects the property of the debtor and this was a change i think in one nine hundred ninety five prize it actually it was only actions against the debt but now it's affecting the property of the debtor this is when these people are going to bankruptcy for most people this is the most valuable asset they have is their