today by the fact that you will specifically order to discuss brown ensure geo as you know this is an area where the jurisprudence has been a moving target and in washington so the briefing unfortunately was a little stale most through no fault of closure i think for us decided that there is no claim the arguing about you need to be a holder and the owner that's kind of what trujillo and brown were addressing sure he was looking at the declaration that's required under sixty one twenty four zero three zero seven and that luray sion states that as proof of ownership the trustee can receive a declaration that states that  beneficiary is the actual holder of the note and there were some declarations that had got put out there that then they used in the or language or entitled to enforce it they fit under the u c c as adopted in washington alliance came out first and said  at the lower court mr zale act had attached a copy of the note that perhaps he had and it did not have a blank indorsement on it and what happened on the motion to dismiss was that the defendant so he wouldn't have that would he i mean that the indorsement care if it's indorsed in blank that usually happens after the loan closes and he would not have that ok more than more than likely he provided the copy that he was given when when the lone quote went t to believe that chase is not the holder of the note which may well have been endorsed in blank and subsequently transferred to cheney's i believe it is if you read the rest of the complaint with all the other information m receiving regarding in these communications who the owner was who was in no hold there was different things like that obviously it's a pleading so he can form his belief from news reports from articles research things like that so so his position is as alleged in the complaint i was confused as to who the true holder of the note was because of the communications that i was having on my frustrations at trying to get answers yes yes and under washington the c a you can have an unfair or deceptive act even when you're telling the truth so if you look at all these different communications and you think about it from a homeowner's point of view what's what's the falsity here i'm sorry it at one point doesn't matter doesn't have to be a false representation how can that be not a consumer protection act yeah and in washington it needs to be unfair or deceptive it doesn't actually have to be false you can you can think the things you're saying can be true and they can still have the capacity to deceive or be unfair but the allegation under the c p a claim is is that chase was not in fact the holder and beneficiary of the no correct yeah and  if that's true if they are in fact the holder of the note then he has no claim to the end of the c p a i think that i think that chase could be a beneficiary if if they are holder and then the rest of the depth of the definition in zero five two but it's still possible to see people with true information well i guess maybe what i'm quibbling with you about are twamley ball standards of pleading versus the more liberal pleading standards under washington yeah exactly and i had been under twamley i don't think that makes it ok and you're now in federal court so if we reminded to the district court and said look we think you need to give mr is a lack of a an opportunity to amend the complaint and i agree and i just found it interesting because at this point the claims are more fleshed out and so i believe that if i'm looking for evidence what you what would you say in an amended complaint what would you allege does not possess it and that fannie mae's on what evidence does he realize you're giving me conclusions i'm looking for facts i think i mean there's reports out there that he could include it that we could that he you there's other cases where this is happened and it's been proven in discovery that that happened like i said trying to that the confusion among who was the holder who was the owner in all these these documents that he received so there is evidence that perhaps there was confusion with the defendant that actually you know who possesses who was the holder who was a beneficiary you think is the holder who would you allege is the holder in two thousand and twelve or today for your complaint amended complaint and that's a that's a difficult thing because oftentimes i use a custodian and then you have to review the custodial agreements or the chairman of the custodian is an agent or just they are just a bailey and so it's actually fairly difficult sometimes to determine who the holder was but i think i think what judge lefkow is getting at and it's the same concern that i have is you've got to be able to make an amendment to your complaint on the basis of a good faith belief as a lawyer that you're going to be able to allege and prove whatever it is that you're a man amending the complaint to say and we're asking you on what basis could you make a good faith allegation that there was a deception if the evidence is that that chase is in fact the holder and owner of the no i mean seems to me your claims going nowhere i mean i don't think that the evidence in the original complaint shows that chases the hol experience and i've obtained three summary judgments on this issue in washington state courts i would allege that chase did not comply with fannie mae guidelines that chase did not take possession of the note and that chase is not a hol no additionally i would allege that under the exclusionary clause that chase is holding the note as a charity for a different obligation and therefore is excluded from being a beneficiary before you you want to say five minutes but there you sit down was trying to figure out who the beneficiary or the holder was who you owed the money to and then appears murray i understand there's a little bit of a shell game going on here but what is the basis for your claim against mers that it just it added to the confusion of mr zale act and that's a that's a c p a violation what did it do to add to the confusion it showed another party showing up claiming to be a beneficiary that he had to then figure out spend his time and money figuring out whom their marriage was lender and no holder and members of the signed as nominee of c t f on the deed of trust and is there any allegation at that point in time as to any deceptive act by mers i sat point in time i don't believe there's an allegation in this entitled to as a homeowner a borrower or a debtor under similar to other laws ok quick question about your c p a claim against northwest trustee services is the current complaint that the trustee had an obligation and even handed obligation to determine the holder was under the current complaint i believe that is true the trustee obtains rejected that argument which dooms this appeal what i wanted to hear those three basic things i want to address brown trujillo because your honour's asked us to do that and those cases demonstrate why planets claims fail and i want to explain in detail in response to your honest questions about the c p a claims why those fail as well and then why the court should reject the new theories raised for the first time appeal so talk about brown first brown clearly held that you don't have to be both the owner and the holder but brown went enforce the note because paying the servicer will discharge the obligation and here's the most salient quote in this is it page seventy four the inference that a service or denotes a holder is therefore a parent here plaintiff alleges that chases the service or they say that's not good enough you have to be both so here you know every document plaintiff got from the notice of default from the notice of trustee sale of all the letters that went back and forth uniformly said chase is the holder of this note and there are no facts plausibly alleged which would suggest something to the contrary and that's why you know we attach a copy of the original notes to our motion to dismiss they need to come up with more just common in response to your question more than just i don't know maybe somebody else hold they need to be plead facts plausibly suggesting that this defendant doesn't and when every representation to that borrower says this is the party to talk to this is the service or this is the holder that ought to be good enough it can't just be like an o putting your head in the sand saying i don't want to believe you so i think brown defeats plaintiffs claims because he concedes where the service so they can see we have possession of the note so let's talk about them trujillo trujillo isn't directly relevant to the claims against fannie and declaration what he did is he said there's this other declaration which is required with a notice of default that has to be how many efforts you made to contact the bar it's under a state statute completely irrelevant no obligation under the statute for that document to address who unfair accepted for chase to initiate foreclosure without being both the holder and the owner and we know that's not true under brown and you know it in their reply brief page seventy or one seventy seven they can see that chase possesses a no brown liable under these facts he suggested these so i'm going to trust created additional confusion two points there i'm sorry the assignment is not delivered to a borrower it's not as if mers makes it repetition to them it's public record and second you simon here says in the back in any in vs countrywide case at page fifty of our answering brief and i think he's right on point which who never says look even if you did spend the time and money away from work to investigate who the right beneficiary was even alleged why you needed to do that you haven't explained to us what remedy you wanted to take advantage of that you couldn't because you didn't know and absent that there's no no injury caused by these defendants the same thing is here he knew who to pay it was chase he knew who talked about as long chase in fact he did there were letters going back and forth every document he got in connection with the foreclosure told them chase was a beneficiary you can't manufacture injury by inflict things red you want to see if we can just stay here stop the clock stacey as opposed to relocating somewhere else ladies and gentlemen what's going on is sadly i don't know what it is about this week but with this is now the third security incident that we've had here at the not more courthouse and what that announcement means is that our court security staff is responding to something on the west side of the building and so as soon the point i was making was you can't manufacture injury by going out investigating things where there's no need to investigate anything because everything's been uniform as the remaining claims they didn't argue those on appeal that abandon the criminal profiteering other claims that appeal not raised but they do make some new org appeal court shouldn't consider below they never argued the no it wasn't a negotiable instrument and we've explained why it is below they never argued that securitization was somehow changed to the know holder was in and brown definitely refutes that and we've i think we sho the purported exclusionary clause they talked about doesn't apply here because in the situation that was given to chase to enforce the loan not for purposes of security so again i want to and as i began which is plaintiffs entire case was premised on the notion that chase wasn't beneficial because it was both the owner and the holder brown has rejected that and it dooms their claims ok that stacey would you stop the clock which is saying and the court security officer here in the courtroom has indicated we're fine to stay right here if you would you lower it's the world that we live in these the his and we have really good court security officers who know what they're doing so you're in good hands criminal profiteering and violations of the consumer protection act as mr zelaya has conceded his for quote wrongful foreclosure claim fails under free us additionally as discussed by my co counsel by failing to discuss the criminal profiteering claim in the opening brief they has effectively abandoned that claim third this court should affirm dismissal of the c p a claim as to northwest christie for the following reasons misters alex claims are wholly premised on his erroneous theory that in order to be the beneficiary chase was required to both own and hold the note and as we discussed that theory has been rejected by washington supreme court in brown as my co counsel noted it's undisputed here that chase is the holder because the plaintiffs allege that chase is the service or the record also demonstrates that northwest christie knew the same as the foreclosure notices and the correspondence from northwest christie to mr zale like consistently identify chase says the beneficiary the servicer the creditor to as a result of notices that properly identified the party who was authorized to enforce his loan accept payments on the long modify the loan and coordinate reinstatement this court as well as washington courts have also seen the same contentions raised in other that were raised in the operative complaint here and rejected them for example in the bond case the court held that allegations of technical non prejudicial defects in a foreclosure notice do not support a claim for violation of the g t a there like in this case plaintiff claimed that the northwest trustee should have identified the no owner who was freddie mac in that case in the notes of the fault rather than the no holder one which the bond court held that they noted that the notice of default provided all of the information necessary to the plaintiff by identifying one with who was the no holder and that by not identifying freddie mac there was no prejudice here the same is true where northwest trustee identified chase as the beneficiary in the notice of default and also in the barkly case the washington's court of appeals that division one held it was not deceptive for northwest trustee to have identified the no holder as as the beneficiary in both the notice of default and the notice of trustee sale the same is true here plaintiff has now attempted to recast to validation however the simple fact is this is not a beneficiary declaration case and the operative complaint did not allege nor could it have noncompliance with r c w sixty one twenty four zero three zero seven a by northwest christie in his briefing to the district court the briefing to the district court identify the true holder in the notice of default but again under brown we know that the owner holder contentions are have been rejected in washington and from the record we also know that northwest trustee consistently and correctly identified chase as the holder not the owner  we also know that ownership is just simply not dispositive mr zale it also argued that there was a declaration by chase attached to the notice of default that failed to identify the beneficiary and as my co counsel explained that declaration is not a declaration under oath three zero seven a instead it's a declaration under r c w sixty one twenty four three one which requires certification by the beneficiary or the beneficiaries authorized agent of certain due diligence and contact made prior to the commencement of foreclosure so  is your position that once your plus received that declaration it could reasonably rely on the content of it to believe that chase was the authorized party correct and the statute itself provides trustee may rely on that declaration but northwich christie didn't rely on that declaration to prove that chase was the holder of the no or the beneficiary it simply relied on it that as the declaration stated that chase as the servicer had completed the due diligence and pre foreclosure contacts that were required under the deed of trust act it doesn't require specific identification of the beneficiary because it can be done by the beneficiary or is authorized agent and it just simply does not implicate the requirements under oath three zero seven a we know here that every document in this case confirm that chase was the no holder there should have been no confusion by mr zale like and he alleges no facts suggesting why chase is not the no holder if i understand his theory correctly what he's saying is i tried calling all these parties and i was confused because i wasn't getting straight answers to my question and i was deceived by what i was told i think that's his theory and i i think the record is very clear in that mr z like his his whole premise was well chase have to own and hold the know so every time someone tells me chase is the service or chase is the no holder chases the person is entitled to enforce chases fannie mae's service or and they hope they take possession of the no under the fannie mae guidelines to him that was deceiving him because the answer he wanted to hear was chase is the holder an owner but that is not required and it was not true so that's not what it was was communicated to him and and unless your honour's have any further questions i would respectfully  trouble i think you've got a couple minutes left thank your honor i'll take the last ten minutes to try to directly address your early earlier concerns about if you remain and what what the complaint could say and also the argument about that because the complaint used the word service or at the time this is a lack you know he didn't he didn't mean the word service or to mean what the supreme court justice i did it meant so he made i guess the problem i'm having with your theory you heard me encapsulate you're welcome to take issue with ok i didn't understand it correctly but the problem i'm having is that you're trying to turn confusion or misunderstanding by your client into deception saying is that chase was not the holder and the way that that would be alleged and now is that if you look at trujillo it cites in footnote four it cites the washington state court of appeals opinion in vaughan and and it says that having a copy of a note indorsed in blank does not make you a holder you have to have the actual original note and so mr de lack story remember it was it was written originally for the notice pleading standard in washington or mccurry chevy chase it got removed and now we're at the ball trombley standard so i believe that his story originally would have been right now if it was written for the multifamily standard it would have included more details about the unfairness about his confusion about the chase you know didn't hold the original note and it would include facts that show that but if on remain an the evidence is that chase was in fact the holder of the note  the time and the service or then he has no claim does either i'm having a little bit trouble understanding i think any be jumping to the summary judgment stage but i'm still trying to figure out what it is that you're going to allege in your amended complaint that warrants that remain and another words if it if if the facts turn out to be as counsel represented then he has no claim and i'm trying to figure out what facts he has to suggest that he this sure in a confusion about ok yeah holder owner beneficiary so in my mind this argument that's why there's a separation between twelve and six and a summary judgment because if you assume in the cases the defendants have their evidence and their answer you don't need to have a real hard to convince us that he's got a plausible claim shirks right and that requires some allegation of fact it doesn't have to be enough to meet the summary judgment standard it just has to be enough to convince the court that well we better send this one forward because he might have a claim here i think there's a lot of evidence that could be put out there and cited to that shows the failure chase to service the loan and at some point transmitted the note to them so that they could complete the foreclosure proceedings how does that violate the fannie mae reg isn't that what the regs contemplate oftentimes  your honor him in cases i've been involved with they don't give the note to the service or they don't transfer going about this case what evidence do you have that that practice was violated in this case i'm hearing a lot of speculation here but i'm not hearing evidence well i think that's that's the difficulty in these cases you have reports and studies that you can cite to what an order to get the specific facts to allege in a specific case behind you know the the merge system and the banking system they won't give it to the to the plaintiffs and so you have to alleg