connection with the collection of any debt the nd statute that we look at is fifteen u s c one thousand six hundred and ninety two f that stature reads a debt collector may not use unfair or unconscionable means to collect or attempt to collect any that difference matter for this case i think it matters only slightly i think there's a couple point one that it matters in that that that we know the legislature knows that it can do different things there right we know that i think the section then is more broad because it says in connection with collection of the debt rather then to collect or attempt to collect a debt as far as as far as it being more broad in connection with collection of the debt that would encompass any of the three time periods that we focus on whether it's the st loan modification time immediately before the foreclosure sheriff's sale or after the unfair or unconscionable means portion there is a more narrow construction there i still think that all three apply but i do think it's a slightly different standard between them because of that additional in connection with language  o i think it's i think it's significant to note that the court below already acknowledged a lot of what we're trying to prove in the case straight from this is page twenty six of the mine appropriately be described as unfair when when we look at that nd statute and talk about what does it mean to be unfair in attempting to collect a debt to collect or attempt to collect a debt if foreclosure is de and the and the lower court already ruled that it's fair to say that that process was on fair then i think that's that's all you need at least that's all you need to get where we're asking the court to take us which is d to a jury we believe that the facts are at least in dispute in this case so much that a jury should be ultimately the decision maker the reason we believe for closure is declaration is because the supreme court tells us it is literally the quote is for closure is a means of collecting a debt that's from the mccarthy and hollis l p s cited in the brief that was a two thousand and nineteen supreme court case so that's just recent law and we know that the recent court made that decision in that reads even if nontraditional foreclosure were not a direct attempt to collect a debt because it aims to collect on a consumer's obligation by way of enforcing a security interest it would be an indirect attempt to collect a debt so when we jump back to the statutes that we're talking about is it in connection with collection of into these or go discussions these communications back and forth the e mails in the shadow and immediately in advance for closure yes there obviously in connection with like the death because they relate directly to the foreclosure is it to to the slightly different standard perhaps of the a debt collector may not use unfair or unconscionable means to collect or attempt to collect that i still think it falls d within that because if you're using an unfair means to foreclose then that's an unfair means of that collection let me ask you about that so judge kobus already identified one difference between  what are the differences if any between representations and meets so i think a representation is something that's overtly being said or at least implied and i think an arc is in both and in all three instances that we're talking about we're really looking at means we're looking at unfair means and deceptive means and the reason i say that is because it almost seems as though even though there are some explicit misrepresentations it seems as use our best efforts ok when it says we've used our best efforts to to solicit the information from the debtor in this workout option and we see what actually happened well how can we object to police say using best efforts is a lot how can we say that them saying that using their but maybe their best efforts really are terrible and in that sense maybe does misrepresentation but it's at least a means this inappropriate unfortunate or  unfair when they tell when they tell my client for example you have in the october th letter when when they say you have to start the loan modification over again from the beginning even though we know at that time that he had a complete loan modification submit it and they tell him to him you didn't submit these documents now he knows at that time that he did submit them obviously and he's very frustrated by that but now they're making him start the process all over again it could be said that that's not a misrepresentation because he knows that they're wrong when they tell him that but to throw him through these hoops again and gaslight him to make him think maybe he didn't submit it those are inappropriate unfair means or deceptive means perhaps not a deceptive we have the attorney general's office fax to them showing the prophet last name and we also have his testimony that he provided that information so that that's objective revolt but then on that piece thirty seven dollars continues and significant there is there soliciting the financial information of my client he is a debtor of that of theirs they could at this point decide we don't want to complete this for closure or we want to complete this for closure d in a different way where we seek a deficiency judgment at this point in and so you know at this point we don't know what they're going to do or how they're going to proceed and at this point they're just seeking financial information from him to make that decision  mean they're literally writing in their letter this communication is from a debt collector ok so be it that there's no dispute that it wasn't that bad here but it says and it is for the purpose of collecting a debt for the district court for the lower district court to say that this letter was not a means to collect a debt but for the letter itself to say it is for the purpose of collecting it that i'm not saying that that reference in the letter is necessarily binding but i'm saying it at least survive summary judgment when keratin is telling you the elements that you're trying to show at least that goes to a jury to determine are right was it a letter attempting to collect unless the court has all the questions that reserve the rest of my time you can hear me right i'm not i'm a near i'm mentally adding representing carrington mortgage services but the unusual position taken by the power in this matter is that this court should find there were communications in connection with debt collection under that  a in spite of the fact that there were no statements in any of the communications that demanded payment contain terms of payment contain deadlines for and collection proceedings or threatened any consequences of nonpayment in this case each and every that's already been adopted by this court it's fully adequate and it's dispositive in this case under the past as explained in a cover communications and conduct are not considered made in connection with collection of that unless the purpose is the communication it to is to induce payment by the debtor yet the mccarver court potentially agreed that this could include reporting a disputed debt to a consumer credit agency in that case but it has to have been done as leverage to still just to provide information and i think that that language is similar to a mini miranda that it's explaining what's going on with the status but nothing in the latter tries to induce payment or get out or o animated purposes or do we read the words and try to figure out what the plain words would mean to somebody receiving a letter i think the court is looking at it from the context of someone receiving the latter and that the the debtor that's receiving the letter and ninety two why am i wrong about that well i think the problem there is that you know it's important to be clear about the status of the loan and it's disputed whether or not this bar or had actually provided all the information that's it an issue of fact that we don't go into because the court doesn't decide it it doesn't decide the case on that basis in this situation but we do just guess in our brief in the fact that  hadn't provided a profit and loss statement that was required but so he's getting this letter back that explaining the status of his loss mitigation effort and the letter also you know i think reasonably explains that this is the status of your language were missing i'm sure we'd be facing a lawsuit under the f t c p a for misrepresenting the status of the loving and giving this borrower the impression that everything was good and everything it stopped well let me ask you that nd regarding cases one that i was going to talk about anyway in the context of this more likely to result and collection letter the example that that case gave was  example of a non collection letter that cross reference as a collection letter i think the core is said explicitly in that situation this is still a collection letter it's cross referencing this other are this is not a collection letter i i think in that case the situation was different because this is sorry i apologize i think in that case there's more details about about what they can do to avoid collection on a diet and the corps examining the letter found that really its true purpose was to get information or was to give information that would threaten or leverage the power or can basically scare them into paying the debt whereas in this case you know we've got a situation where in less than a year period it's a ten month period from carrington starting servicing the loan to their foreclosure the borrower is basically creating a flurry of contacts by requesting loan made multiple loan modification applications and submitting his documents in a piecemeal form that causes a service or then to need to follow up there's well over twenty contacts that occur between carrington and the borrower during this ten month period and those contacts are all relating to and many of those co initiate by the borrower himself and they're all relating to just giving him an update of the status the collage and the f t c p a it was really intended more to address intentional purposeful lender chooses to engage in in order to collect on a debt the whole purpose stated in the statue is to make sure that we don't know abusive debt collection practices here because these letters were initiated as a result of loan modification applications and follow up inquiries about the status of those applications they are purposeful directed efforts by the lender to collect on that debt and therefore there is no way that these communications can satisfy it animated purpose test because i have very minimum that has should actually require intense right a lender can't be purposeful unless they have some kind of intent to obtain collection on the application process to determine whether it's appropriate to restructure the debt after a number of defaults constitutes a direct or indirect demand to collect that sat it simply doesn't because under the statute it was the purpose is to eliminate abusive debt collection practices and it's certainly not to cause lenders to want to avoid offering loan modification options you know there's a public policy reason why this statute needs to remain focused and tailored to borrower to say that your overall conduct was unfair everything about the plaintiff's complaint in this case is focused on the misrepresentations he alleged a little bit of conduct in the complaint but during that briefing it was all about the alleged misrepresentations that came out i was also brought up in the briefing so he's basing his kind of argument on the argument that there were misrepresentations and there's a serious question of fact as to that but really if if none of those correspondents none of those letters were intended to collect on the debt then it doesn't make sense to find that this this was an unfair or unconscionable means to collect on the tax and while we're on sixteen  and i think also abandoned on appeal there there weren't citations to the minnesota statutes there was not a discussion or showing there was an allegation in the complaint that there was dual tracking that i layed in minnesota law but state law claims were dropped and state law was never used as a basis for for bringing up an f t p a claim in fact and glad your honor mentioned that because i did want to touch on a da ski i feel that court said it does apply in one situation and that is under the situation in six hundred and ninety two after subsection six and that's the only situation that applies but we've never had a section six hundred and ninety two  subsection or f subsection six claim a pal in this case has never said that there was not a right to foreclose which is the subsection a of that section he's never said proceedings when they decided not to proceed with their state of claims and they did not raise any illegality argument as part of their at the c p a claim instead they focused on the communications and whether those communications were misrepresentations and the counterargument is it really doesn't matter there were misrepresentations or not because none of them were efforts to collect on th points that i think i'd like to address are references to illegality in the prior pleadings the argument and a discussion then a macgyver and the narrower how narrow of a stance there is there just one of the last comments that illegality wasn't were citing the dual tracking statute we are referencing illegality and i presume that we did that at the district court because that i mean that that was a two or three something our firm regularly gets and regulated talks about and i would imagine limitations had expired other words these ladders all say that we're pursuing for closure and we're going to pursue workload for the same time as a loan modification and so this was known and so doesn't that take a little bit of the unfairness or unconscionably out of that claim i think when why i guess two points one yeah he should have brought a lawsuit on time the statue of limitations is extremely small and it's hard to say as limitations are opposed have the sort of back and forth discussion he was expecting rescission during that time so he felt that he screwed that up and so part of the interesting question before the court is all right well even if he doesn't have a claim under that statute then does he have a claim under the f t c b a for the unfair behavior so even if he doesn't bring that lawsuit timely does the federal step does you know does his inaction on a state law claim preclude his ability from bringing an action not there's a question in macgyver of all right out loud things are happened do you no longer have the ability to bring enough to be a claim for mister stations after the fact the argument that the courts seem to acknowledge below is that there has to be either an explicit or implicit request or demand for payment and that's and when the guy or says that it's following gird and cites gordon and then you look at those three cases as the court obviously did good has a has a broader standard  it says that it's either the animating purpose to induce payment or that or the activity communication whatever it may be that aims to make the ultimate collection attempt more likely to succeed and if it's if it's an activity that creates it more likely to succeed then it has that represent connection that's what gordon says macgyver said it was falling gurdon we're not saying to disrupt macgyver we're saying the guy was being too narrowly construed and that this court to clarify that it's actually following gordon as it said it was which would include both of those standards believe opens up sorry if you have additional questions thank you so much for your time thank you  thanks to both counsel for excellent oral arguments the case is now submitted and opinion will be issued in due course