ascii are asking this court to set aside the honorable donovan franks summary judgment ruling for three primary reasons first we believe the court erred in granting summary judgment because the acknowledgment the court relied on was that they could not write a check for six hundred eleven thousand dollars that day what did they say we could get a mortgage or was there any disk i mean was there any evidence present to the district court of when a bill we did to tender other than through an eight hundred thousand dollar offset yes we actually argued a few things on that point number one yes we did argue that there should be an offset of the attorney's fees but they did have actual damages of roughly one hundred  forty two thousand dollars in the depositions they testified as to certain investment accounts larry just give me in his deposition testified that he had a retirement account of about one hundred twenty five two hundred fifty thousand dollars he testified that misjudge me makes roughly sixty thousand a year he makes anywhere from sixty to one hundred twenty thousand a year and then in ms just a deposition she testified that she had an investment account in her own name of roughly one hundred fifty thousand dollars it's our position that based upon that there is a material fact disputing whether or not absent the actual damages whether or not they could actually tender  not even setting aside the issue of attorney's fees why didn't they why didn't they go out together a long commit and come into the court and say if they release the mortgage we can get a loan for six hundred eleven thousand dollars based upon all the factors you just mentioned well because of the bank has never acknowledged that my clients were entitled to the offset of those damages or that the rescission in this case was valid so that hundred  forty one hundred forty two thousand dollars of damages was never going to be taken into consideration by the bank and that was always the issue the bank it always said the district courts discretion in the in the suit well you can't  know that that's not what judge frank said judge frank said that he essentially and his order sad very sad method that they could not tender and what he was taking from was the limit to deposition testimony that we couldn't cut you a check for six hundred rescission we believe that this case which went up to the united states supreme court for close of that opportunity the most recent just not ski decision that was up at the united states supreme court we believe in they specifically said that the equitable the the language of the act does not give the right to circumvent statutory procedure in fashioning rescission the act so you're saying that the creditor hasta released the mortgage without tender yes that's exactly what the access it says a what happens if they don't pay the money then the creditors to totally out no the creditor has a has a claim against the homeowner for what they didn't tender if they do not tender but the act itself specifically says there's no ambiguity in the language of that act that says the lender has to release that security interest within twenty days so all these case law all these cases from all over the country this say that there that the court has an equitable right to fashion a relief that requires that upon release  mortgage there be a tender you say those are all been overruled by the supreme court i think it's finally been addressed by this latest case in just a nasty as i don't think it's ever been addressed before by our highest court and it's in the last  the second to last paragraph of the decision the court goes in to some detail saying that it the common law ability to craft an equitable rescission is not circumvented by under the transaction you know i read that i actually read the summary the hearing transcript and i i i share judge frank's frustration that there isn't some way out of this morass that you know i know the jazz  feel that they feel they've been unfairly tarnished that they're trying to get a house for nothing but they have lived in it for ten years without paying anything according even as i understand they have paid the insurance sure and i mean isn't there any way out of this morass you know is i'm sure smarter minds have have tried to come up with that your honor but every at every turn in and essentially every case that's what the lender does they come up here and they say well they've been living in th house for this long at some point there's a point of no return when a plaintiff is trying to get relief but to the specific facts of our case our clients tried to make payments they tried to make insurance payments those payments were not accepted by the bank and judge frank even we went into some discussion about that in oral argument and there was a lengthy back and forth about that and he even questioned the bank in this will you want to accept those payments would you so yes that is a issue but it is not central to what this case is about we believe that that generous generosity just a nasty decision it at a minimum is clear guidance on how this was only one basis for why don't judge frank toss this case out but as to that point i think it should be remained it for a trial on the issue of whether or not they can tender if that's if that's the case that this court does not believe that what i've quoted here or the decision that they made overrides or overrules the prior decisions i think we need a factual determination made about whether or not they actually kin tender number one so that but so what happened here is as i understand it is if you when you go back and there's a trial and i don't know if it's a jury trial but there's a trial some kind and whether or not they got four notices or two notices correct if they fail if the factual determination as they get to notices that and the recession was was valid you get statutory damages attorneys fees and you're required to tender while they're required to release a security interest first and then we're required to tender but there's got to be you've got to pay the six hundred eleven thousand dollars and they've got to release a security interest yes only to the extent that the six hundred  eleven will be offset by those damages and potentially attorneys fees as well that the attorneys fees i agree would be under the court's discretion on what they're going to order but there are certain offsets and there are cases that do talk about net proceeds untender vs gross proceeds so it's not just that the homeowner has to walk in with this check for six hundred eleven thousand dollars that's kind of been our point the entire time but those cases don't say you have to walk in with a check they say that you have to be able to show that you can't enter not that you actually have to deposit six hundred eleven thousand dollars with the cork a court you know and i would alone commitment that says if they if wonder releases will make a lo plus your dollar payment you said they got three hundred thousand dollars in investment accounts that between a loan and the three hundred thousand dollars we got the money for a home that was purchased for six hundred eleven thousand dollars if there's no security interest on that i can virtually assure that every homeowner would be able to walk in and say i can tender but why don't you just do it that's what you are and that's never really been an issue in this case because the fight has always been whether or not the rescission is valid the summary judgment dispute of standards of review it is it is whether or not the acknowledgement could be read two different ways by two different people there you've got to win both of those or you got to win your alternative we did rebut the presumption no and i'll clarify the argument on that that our original argument was that the acknowledgment was ambiguous setting that completely aside judge frank he ruled that what well no but i can concede it for the purpose of this argument because if we get to the point of whether or not a rebuttable presumption is appropriate doesn't matter as to the language of a knowledge meant so assuming that acknowledgment is valid and says what judge frank says it says then we then judge frank would apply a rebuttable presumption that my clients actually did receive forte and then the  crux of the argument is whether or not the rebuttal rebuttable presumption was applied and which case is our case more and like is it is it like the the most recent curing decision or is it like the peterson you're correct correct and i think there is a stark contrast between those two i believe our case is much more aligned with the peterson case than the curing case that just came out i'm happy to go through the differences but instead of four why should we say that judge frank up the cart before the horse in this case and that he says the you can't win because you can't tender but the argument i think the other the countervailing argument is yes but bank of america to this day refuses to acknowledge there was ever a valid recession they literally have taken this case all the way to the united states supreme court they want to get it a million dollars in attorneys f reason to address the tender issue first is because as you said it's a way out of the morass here and it's it's frankly an easier question in light of this court's decision in because the district court here did exactly what this court authorized frank did which is straight through the tendered issue and the reason you can do that easily is because it's right there in the last sentence of section six hundred thirty five which says that six hundred thirty five be through the procedures that apply in rescission but the last sentence is critical it says that these procedures apply quote except when otherwise ordered by a court and when the supreme court had this case the just ask his lawyer in the supreme court freely admitted in the argument transcript of pages seven to eight that that sentence gives district courts the flexibility to reorder the steps in rescission just like the district court did here on remand to prevent unfairness to the lender and prevents a little bit of taking dicta for the supreme hear it said you can rescind but i'm going to use my equitable discretion in the last sentence of section six hundred thirty five b to reorder the steps and make sure that if i allow rescission to go forward that you can actually return parties to the status quo because that's the point never session rather than transforming the lender into an unsecured creditors and that's exactly why congress in one nine hundred eighty added that sentence to the end of sixteen thirty five b to ensure that the lender could be returned to the status quo and so even in the equity support that decision here even assuming that receiving two copies versus four copies is a violation it's a paper thin one and it did zero harm to just ask us here in fact they didn't even use the two copies they acknowledge now they received when they purported to rescind they created their own decision notice as they're entitled to do  plaintiffs have not met their burden of showing evidence that they can meet that tender condition as you said george malloy they've offered no evidence that they have any lender commitment who would actually loan him the money to do that and i'd like to correct  something that mr bettina said this house was not purchased for six hundred eleven thousand dollars that amount was a refinance amount that included additional funds for them to pay off other debt so i don't think you can draw any conclusion from this size of the loan that they would be able to get a similar loan today but also as you pointed out they both conceded point blank in each of their depositions that they can't tender the loan proceeds now and they admitted that no family or friends could help them tenure and if if they had evidence that they actually had the means now to meet the tender requirement i would have expected to see it in the reply brief but their point the reply brief says nothing about the evidence they have in this case that will help them meet that tender requirement for a six hundred eleven thousand dollars loan now the second way out of the morass here is to address the straightforward legal threshold of this whole case which is do you get an extra three years to resend merely because you received two copies of the document instead of four and there's two problems with that first there's no support in the text of regulations that if the regulation were truly intended to impose this non secular that you get three extra years to rescind because you receive two copies of the document instead of four you would expect the regulation to say so rather clearly but it didn't to the contrary the regulation says that the rescission period is only extended if the borrower does not receive the required notice that's a notice in the singular not copies in the plural and that makes perfect sense but there's a pretty extensive body of case law veiling with the truth in lending acted there rick excuse me that holds creditors to a very high standard and a very strict standard yes your honor and the reason the  is because the truth in lending act is supposed to be a disclosure statute it is supposed to ensure that borrowers receive full notice of all the information that they are entitled to and that's exactly what happened here the the you can see on page two eighty three the actual notice in this case the borrowers undisputedly received that notice and it includes all the information that's required to be included in the the top half of the rescission notice matches the model form exactly and it makes perfect sense that the truth of money act would reply and regulations would require notice because a borrower who doesn't receive notice will have a very difficult time effect vote effectuating his will find it every bit as easy to exercise those rights as if they had received four copies and the model form this is the notices says you have three days right that's right your honor and the model form confirms that that's right the model form which is itself part of regulations see that it's a single sheet of paper with no reference to multiple copies and it says borrowers you have three days to rescind from the date you received this notice of your right to cancel and it's undisputed that the just received this notice of the right to cancel at page two eighty three and the second reason for addressing this issue is that the truth in lending act does not penalize harmless hyper technical violations as i said it's a disclosure statute but more copies doesn't mean more to her and that's why the fourth circuit got it just right and shelton where it said a lender who provides fewer than four copies in exactly this scenario still substantially complies with the truth in lending act because that's at most a hyper technical violation and as i said it's especially harmless here where the borrowers didn't even use the two copies they now  they received counsel suggested we did not raise this argument below i'm afraid he's mistaken about that we raised this in our summary judgment brief at pages forty nine to fifty of the joint appendix he responded in his opposition at pages three hundred six to three hundred seven it came up again in the reply brief at page three fifty and then on the record at the summary judgment hearing he acknowledged that we had made this argument and acknowledged that we ha that's at page three ninety so the court can and should take this opportunity to address the threshold legal question rather than allow what happened here litigation over the course of many years each received their own set of documents and the just nazis tried for about that presumption using the so called envelope theory but cure and squarely holds that that theory does not rebut the presumption of section sixteen thirty five c and in fact this isn't even weaker case than here in here and at least the cure and screw provide affidavits testifying based on their own personal knowledge of how many copies were in the closing file when they opened it up three years later not so here the just analyses have no personal knowledge of how many copies of the notice they actually received at closing and more importantly and different from here and they don't even have personal knowledge of how many copies were in the closing file when they opened it up in february of two thousand and ten the only evidence in this case of the number of copies in the file in february two thousand and ten is what they say someone else said it's what they say mr heinzman said and because they're trying to use mr hines means out of court statements to prove the truth of the matter asserted that's classic hearsay and they have never identified any exceptions that would render that hearsay admissible here so for that reason the district court correctly granted summary judgment correctly held that the presumption of receipt stands and if the court has no further questions we ask you to affirm was  thirty two of the record mr bettina's says we cannot represent that this is the complete and accurate closing file so there is there is no evidence here even if cure and came out the other way this case would not survive