it please the court i'm brian miller for the plaintiff apparently barrington if possible i want to try to reserve five minutes for about a thank you so we think that the the sort of the big ticket items for the appeal of course we're here to answer any questions that the panel has but we see them as whether there's a duty under the morrow versus bank of america case and we also see the major issues being whether this was a self concealing tort under the black burn versus blue mountain clinic case and you know if we had to sum it up in a sort of shorthand we would say that the district court erred here because it got too stuck in the facts of morrow and lost sight of what the holding was the holding was broader than the facts of the case itself and we think that the what the court was trying to do what it was wrestling with in the morro decision as it stated was figuring out how banks and borrower stand in relation to one another in the modern day world which is different than the way banks used to operate in for most of the twentieth century and more was trying to count to count for that fact and it it did say in the opinion and i think that the most of the analysis of all of the duty analysis occurs on pages eleven seventy seven and eleven seventy eight that's really where the nub of that analysis is but in there they said you know sometimes in the modern day world bank it's thrust into the role of the advi and so what we're looking at is to figure out when has the bank exceeded its role as an ordinary lender of money and when it looked at looked at some prior montana cases which would provide context one of them was the case of diced another one was the case of kohl's department stores and you know the dice case was it was a different kind of case but it was one in which the court said yes there's a duty there in the coles was the other type of case where they said there was no duty and the difference between those two cases could be summed up like this in the coles case where there was no duty there were these two brothers that ran a department store in billings montana and they had a longstanding relationship with the local bank i think was first national bank of conrad and there was a relationship there because one of the owners had been a frat brother with a guy at the bank at some point the bank said look the way you're financing your store doesn't make sense you use the ninety day re application promissary no why not shift into long term financing and they did that and things went bad the court said that's pretty standard for a bank to tell somebody to do that to change how they are doing their financing that's not abnormal and the other case of diced was a little bit different because in diced there was a ranch wife widow who's after her husband died had a real problem with her ranch and they had been doing business with the first i forgot the name i'm not sure that maybe the bank of conrad actually that case and any of that they'd been doing business with the bank for a long long time and they ended up the bank trying to find  some people to buy the house the buy the ranch for them eventually they had a lot of deals that fell through and they got one that stuck but there was a problem with that deal prior to that deal going through as the as the ranch wife found out later one of the banks officers had entered into a operating agreement with one of the buyers to take the ranch and sell it and she said wait a second i didn't know about that before we did this have we're here to try to answer these questions and so there's a lot of so that was what started the transaction ok now i would say that that is not it's not normal for species that's that was a case where there was no duty because the bank gave him bad information and quickly corrected it and also i think the but also in the andersen case i think in andersen the bank suggested that they ply for a l stop in your mortgage only a small amount of your portion of your mortgage payment to do anything like that no no what else is there anything else oh yes i mean there's i mean that's where it starts and what happens is then for the next four years there comically mishandling is application and there are not processing it in the correct timeframes one thing i can point out that's pretty important here is that in april of two thousand and ten when there still he has a hamp i think is the second or third hand application is pending he's he's thinking well this isn't going anywhere there's another program out there called the hospital program can i try that program and they say no you're  you can't use that program so that what they're doing your honors you're sticking him in this cycle and if the court looks at what constitutes damages under morrow and under jacobson it is things like giving the misleading advice because another thing that's happened as a practical matter you know i was trying to think of an analogy if bank of america had told mr byrne ten that if you want to loan modification please send letters to the department of treasury asking them to modify your ok that's not going to lead to a loan modification neither is applying for hamp it's affirmatively misleading it has the same legal effect they're sending him down a path which is at the heart well because he missed opportunities well he missed one example was the hoffer program that's a way to get out from under a bad situation if he can't if he cannot get along modification there's another way t example he you know what he was told in two thousand and fourteen was that there was an in house modification possible with look everywhere oh that was when the other service or awkward took over bank of america allegation and you know to be fair you know if auckland gave him the decision far quicker than bank for america did an awkward actually told him or they still haven't given him the documents to prove it but they told him that hamp wasn't an option but still a reasonable way of over six months which under jacobson in morro can be damages and what we've said judge is that i don't know if it is oh i'm sorry i just let the other thing is that u bank is the whole the owner of this note and both of its agents it first it had bank of america then it had oc one and we're saying look us bank your guy caused this situation if you given our client a decision within thirty days sixty days and maybe just say hey look there's no loan modification at least he can mitigate his damages maybe he can sell the place we will never know because they misled him from a tiddly and that's why i think the court feel comfortable finding a duty because the advice that they gave my client had no more chance of leading to a loan modification than telling him to write a letter to president obama would i mean he doesn't know and one of the cases that was cited by the district court in sort of talking about the self concealing nature of this tort because we think if the court looks at the blackburn blue mountain clinic case which we cited in the briefs that case talks about the fact that  if the party in that case the doctor has a superior knowledge and they don't disclose it to the to the patient in that case that sort that tort by its nature is self concealing in the case of black burn the woman shows up at the clinic and the doctor is happening kalispell montana doctor says look you're you're the father of your husband  hiv positive your baby will be a hiv positive and won't live very long so she has an abortion over that it's a pretty bad situation that happened in one thousand nine hundred in one thousand nine hundred five she's talking to a lawyer who says a wait a second that's ridiculous and the montana supreme court said look the doctor's the one with the superior range of facts there are they didn't tell you that that that tort by its nature is self concealing here mr burr inten is the it's ok if there are no questions i would like to reserve the balance of my time thank you may please the court matt fitzgerald on behalf of bank of america i'm sharing argument time today with my friend mr hoffman who represents us bank in auckland and i'll first address the negligence and the montana consumer protection act claims mr hoffman will speak to the declaratory judgment claim based on assignment of the mortgage so first the negligence claim under montana law failed to state a claim correctly dismissed on the ground that there was no duty between the banks and mr burr inten and just to clear up one point this claim was brought against all of the police but on page nineteen of the opening brief mr brenton said he was not appealing this against stock one so we can set aside a coin the general rule of course is that between lender and borrower there is no duty and tort in morrow the montana supreme court came along and identified a narrow exception for that in the context of mortgage lending and called that exception quote special circumstances the andersen case which is the subject of twenty ha briefing in this court  also from the montana supreme court called the same thing quote extraordinary circumstances so we're looking for extraordinary circumstances that would create a duty between the bank of america and mr burr inten and there  such extraordinary circumstances in this case it's important in morrow the example in morrow of the bank telling the borrower to default telling him to ignore notices of foreclosure telling him to pay less than everyone seemed that it seemed like he owed those are the rare example of the bank taking on a relationship of trust essentially becoming a financial advisor to the borrower and there's nothing like that in this case they they strung him along of course we're on the motion to dismiss stage so we haven't had an opportunity to dispute the facts but as alleged yes it's that they strung him along but there isn't anything about that that is the same as becoming a financial advisor has defaulted that the bank look into options to avoid the ultimate foreclosure and the montana supreme court recognized this in the andersen case when it said quote the mere offering and administration of hamp loan modifications  sure your honor they by this time it was certainly common practice for the banks to be notifying people that this program existed and the government was yes pushing the program and pushing investors to be part of the program pushing servicers to do it so sensually them under morrow and andersen which are these two cases and similar context from the montana supreme court there's no duty and negligence here so to turn to the consumer protection act clearly where you were going through that there's a suggestion in the briefing and in the complaint that he had a claim for negligent misrepresentation why was there there was briefly your honor yes so he never has asked for leave to amend and on top of that he's never said what what additional facts he could put in in order to make that claim so in the absence of that the district court in its adopting the findings and recommendations it did make a finding that it would be futile to amend on the ground that there had been nothing said about what facts could possibly change the situation alleged the theory that  he pleaded so the complaint has these four counts and it labeled a numbered and under count two for negligence there's one paragraph that lists the elements of negligent misrepresentation but there's no factual there's nothing to say this jumps out of negligence here the facts say to show what the justifiable reliance was which is a  particularly so it seemed in context like it's baked into the negligence claim that he was making which requires this duty element that's what was moved to be dismissed the banks did not jump in and say negligent misrepresentation should be dismissed it's not in the motion to dismiss briefing which is in the record of the district court at docket fifteen and twenty one so it there wasn't fair notice of that claim now the consumer protection act claim is that as the bank of america it's the one that's on timely again stock when it simply didn't state a plausible claim provided him a loan modification offer quickly but as to ban it's untimely  and it's beyond so it's undisputed to two year statute of limitations undisputed the claim was filed more than two years after bank of america stopped being his service or so it comes down to tolling and there's a lot of discussion of self concealing what sort of fact it is counts as self concealing but the concealing is only one element of tolling and so what happened here is the district court cut through that and said regardless of these things mr berrington is aware of the basis of his claim and he can't get tolling regardless of the self concealing element and what the district court did is it noted that in the fall of two thousand and ten for instance he was told at least three times that he wasn't going to get this hamp modification by bank of america that's in the excerpts of record between pages eighty three and eighty five to the citing to the complaint and so if we take those and we look at the basis for his consumer protection act claim in the complaint which is that excerpts of record want to one we see the basis of his claim is contradictory statements sending in notices of foreclosure being confused about his account all of these things our interactions between mr bring some in the bank that he would have known about that that it's appears he knew about when they happened so there's no secret hidden thing that he doesn't qualify for hamp that's key to the consumer protection act claim that he made and in fact in two thousand and eleven in his bankruptcy filing he listed a unfiled claim against bank of america as among his assets so on penalty of perjury among my assets are a claim against bank of america more than four years passed between that and ultimately filing this claim so the district court was correct but it was untimely if there are no questions i'll turn it over to mr hoffman to address the declaratory judgment thank you you thank  trust was void as a matter of new york trust law the judge does require enter judgment or favor the scorcher firm for two separate independent reasons first after the judgment below the one circuit held in return or that a assignment to new can be set aside by the parties to the transaction if they choose or ratified if they choose but a third party has no right to come in and question it so on the merits of the declaration he specifically sought that the summit was void was incorrect as a matter of new york trust law the judgment should be affirmed on the merits second on the issue of standing the basis for this decision below mr brenton does lack standing as a matter of new york in montana subject of law to challenge the assignment to the two thousand and five a trust is not issued article three standing is an issue of whether or not the state law gives him a substantive right to challenge an assignment that he is a stranger to and under both new york law which we think applies here and the law of montana a stranger to an assignment cannot challenge the assignment in court so also for that reason lack of standing in the district court properly entered me properly denied mr byrne things claim for declaratory judgment and we think that judgment should be a i think that i think i heard and if i didn't hear it the right way is what i wrote down at least was that what i think counsel for the bank of america said what the common advice is to a borrower is  an option to avoid ultimate foreclosure and if that is the common advice then the uncommon advice is an option which doesn't lead to that and cannot have a any possibility of leading to that and that can't be normal advice for a bank to give to a borrower we would agree that normal advice would be something that would help them avoid foreclosure just like in my example if they told him go write a letter to president obama every friday which would be it's an absurd example but it's no more likely to lead to a modification than telling him to apply for help and you know there was some discussion about what he knew and when he knew it and disc references to of record pages eighty three eighty four i think if the court looks at those even take your lead paragraph thirty seven he's getting these mixed messages he's saying well we don't have more information but keep  for hand because it's out there is an option for you and you know in terms of he did disclose on his bankruptcy a claim that was something that the district court judge noted but what we what that doesn't factor into is the fact that the bank engaged in conduct after he listed that claim so even if there is some parsing where we say well look a claim that was prior to that day you knew about it it's time barred even if the court got to that point which didn't  actions which happened after that date certainly certainly can't be captured by that claim and he filed that bankruptcy in april two thousand and eleven another thing that's important there is if the court looks at russ tad which is another montana federal district court case because what happened in rust out is very similar to what happened here the bank kept telling the borrower that was going to foreclose it was going to foreclose it was going to foreclose and the district judge said well look your kind of tell me guy that he might get foreclosed but he might have a lot more of a loan modification therefore your damages aren't stabilizing until they take that action and foreclose so if we apply that same rationale here and we go back to that july eighth two thousand and thirteen letter where they are still telling him that you can go for hamp as an option then we have to also conclude that by their actions not anything that our client did they strung this thing out the accrual date was at least to july eighth two thousand and thirteen because he claims that he was never told that happed wasn't an option and in the complaint he does recount the time that they said you're not you can't get this loan modification will try and in house he asked to find out why he says they hung up on him and wouldn't tell him one thing i do want to that depend on whether he understood why it just depends on with me sure exactly but the problem that they have is that july two thousand and thirteen letter where they're still telling him that hand is an option and you know it's it's amusing for us because they say well he should have been smart enough to know that wasn't true and the montana supreme court addressed that in morrow when it said bank of america the same defendant here is telling the borrower you can rely on what we say on monday but not what we say on tuesday you know and then i'm out of time so if the court doesn't have any questions i will rest thank you thank you very