i'm honored to be here mit please the court if i may have three minutes yes your honor this appeal is in two points essentially the first has to do with the arguments that mills raised in the court below that were simply not addressed and the second has to do with a number of arguments that were raised which were of an argument that was made in the lower court that was not addressed is that the foreclosing entity in this case one west did not own the mortgage on the note at the time of the foreclosure and it had to own both instruments now that argument was based entirely on the mortgage contract itself your order so mortgage contract states plainly unequivocally and repeatedly at paragraph is considerable overlap you can cross reference between the mortgage contract and the promissory note and or contention again is that one was did not own the note at the time of the foreclosure no the a polies acknowledged that one west did not own the note that it was not entitle to payments that it was not a successor in a sign of the foreclosure in support of that argument they have submitted in the lower court and again before this court in their supplemental appendix the entire pulley and service in your great image of the trust exchange commission or in fact the truth no the problem with that in fairness the polling and service in agreement i believe does in fact establish an agency relationship between one west and  us the problem though is i don't believe that they went far enough into the polling service agreement because when you do when you get to the provision that deals with persons team owners it states very explicitly and very plainly only person is entitle to payments or the certificate holders and it goes on to express fully exclude the trustee the depository and the service or as being persons deemed to suggest that there was an agency relationship between one west before closing it if he and us beg for the certificate holders no murders issue i stated that the lower court in this case did not provide any independent analysis of michael hayden argument but in stead to further basically incorporated by respect to the note you say that one you must be saying one west was not entitle to payments exactly but there the service or well to collect the payments if they do not  i think says the same thing once the mortgage and the note are reunited in they can be reunited in the service or that's the end of it i'm just tell me when i'm wrong what am i missing here well  case it has no relevance in this case no applicability i'm already doing the strictly by good old fashion contract law it says right in paragraph twenty two you have to own both the note and the mortgage  owned and don't have the right to payments that well they don't really explain their way out of that your honor what they have done instead is to claim that mills has no standing  talk about the pooling and servicing agreement so i would dispute where you are it's not an issue of standing here before you step back judge lynch ok attaches documents to a point that undermined the plaintiff's theory of liability and that in this case was that my client wanted west bank did not have the power of say i want it for closed i have three main points to make concerning the district co first two points which are really intertwined ownership in the what you do need the kindness of responding first to the argument that was made that one west is not entitled to the mortgage with a note in one west is the service or certainly one let us collected the payments the trust is entitle to the payments in one record when the us is acting as an agent for the trustee of the trust us back so us again is just an arm of the of the energy that is accepting the payments of the trust and i believe that the calling decision actually dealt with the language in the murders mortgage that mr rove didn't reference and i believe that two ninety two in notes six indicating that the language essentially does not require the note in the mortgage to be sold together in your honest if that's us new fish and thank you  the first two points the ownership of the mortgage it really is not the critical inquiry here at all rather when we're dealing with a murder as mortgage and when we have the debt split from the security instrument under mass law the critical question is who know that's the that's the critical question in this case because as the court is aware from culhane the note holder has the equitable right to require is to assign the mortgage either to the no holder or to the service or at a successor's in the signs in that one west bank was the service or and all this or criticism time in two thousand and seven so therefore there's no question after reading the complaint the district court concludes that us bank has the right to instruct him or is to assign the power of sale and the bear legal title to the service or for the purposes of foreclosure and that's exactly what occurred and yet we detail those facts in our in our brief and we all have record citations this left the court with absolutely no options the appellant's claims council run through twenty three were based on the felty premise that my client one west did not have the power of sale that leads me to my third point which is the statute of frauds argument this was really the large this is the the biggest argument in the briefing in this case from the appellate court of you it was satisfied in this case it was satisfied when the appellant signed the mortgage in writing with conveyed the legal title in the power of sale to mers it was also satisfied when mers in writing signed the murders assignment and gave that in writing to my client one was man so we have two instances where the that legal interests again which appellant conveyed was assigned in writing to the appropriate parties that's a complete change of title and again that's the very interest that within the  and there's also another case cited from the district of massachusetts the jepson decision were judged to rope in really does a good job of going through culhane all of the standing issues in morris and refer the court to that it really matters not what happens during the securitization process whether the mortgage document itself in a collateral file is sent to a bunch of different parties and that's because again mers is the mortgagee of record we don't believe that the appellant has any standing whatsoever to address the process by which the document actually was conveyed this is not the case where for example the appellant pleaded in the complaint that the actual no for example was transferred to no none of that was pled again it was ok but what do you counsel when you say it doesn't matter that the mortgage may have gone to different folks to securit cites there are two types of mortgages it talks about the non mers mortgages and that requires a written assignment with respect to the memories mortgages it just requires the depositor of the service or to instruct morris to change who is actually the challenged the process questions at this time your i'm happy to rely on the papers for the the the motion to amend and the issue of newly discovered evidence what i would like to state though that with respect to your honor it's very important to me to stress the fact that my argument is that the lower court in this case with regard to the burrs issue applied the wrong in the alice's it applied you know says of colin cole hayden was premised on the likes to apply what's known as the in trust for rule which has grown out of massachusetts law that allows the mortgage in the note to be held by separate persons when that happens the holder of the mortgage  resulting trust for the holder of the note they have to be reunited at some point prior to foreclosure all of that is premised on the fact that the note is separately hell no argument in this case is that morris acted soley  representative capacity and i stand on the brief because i went through this at great length in the brief to explain that if murdoch's in a representative capacity and incidentally the mortgage agreement refers repeatedly t representative or only as an agent or nominee all of them are as contracts there are rules regulations make very clear that murph zones and nothing acts in a representative capacity the moniker mortgagee which appears only once the mortgage is a fiction of convenience basically it was basically developed to allow members to remain the mortgagee of record while at the same time the mortgage actually was pretty challenging him and i would respectfully service agreement which they have admitted into evidence states as a matter of sworn to proof that this mortgage was passed from the originating lender to a solar sponsor to hit the pause or finally to the trustee there were multiple transfers i submit to you that if the mortgage see none of those assignments had to be a memorial for those transfers would have to be memorialized that cole hain but that is not the argument that's made here and i feel very strongly that the blood simply should not be applied in this case the question and it is a matter of first impression of massachusetts at least at the appellate level does the mirror approach one of the murders as and agent for a nominee for moral support consecutive owners of the mortgage somehow serve to transfer the actual ownership of the mortgage from one party to the next there is no authority to that effect there is no support for that argument  thank you very much