good morning your honor if i may i would like to reserve four minutes deprive a consumer of their due process rights under a foreclosure action by taking a foreclosure by advertisement where there was al ready a foreclosure by judicial means pending for purposes of this case i think we can assume that this act doesn't really care about how the debt came about and this ad doesn't really care about how the debt is treated these of the daughter but the sat does care and is very much concerned with the rules by which debt collectors play when they collect does now there are two allegations that i raised in my complaint which were dismissed pursuant to twelve b six we maintained that the district court judge did not apply the test properly and that this defendant did not meet their burden in showing that there was no possible factual development under which we could prevail the first count of my complaint dealt with fifteen us c sixteen ninety two six a that involves the taking  under the statute from which all of the arguments flow the first critical fact is that selena had dad one of the appellant did not sign the mortgage the second critical fact is that the foreclosure did take place by advertisement while the foreclosure judicial foreclosure was pending in regard to the first  that the mortgage was not signed by the defendant's wife serina there are two very clear legal principles which tell us that that mortgage was not enforceable the first was under the first issue in regard to read of the cation is they're claiming an agency relationship later between the husband and the wife and this gets back to the other reason why the mortgage would be illegal under michigan law and that is a husband cannot mortgage and pirates property without his wife's permission and that's what happened in this case and getting back to your question about we can't presume an agency relationship under michigan law i cited numerous cases under my in my brief indicating that if you wish to argue that a husband or its wife for that matter is an a to make representations that indicated that she was in fact basically affirming that she did make those representations that is correct and the best that we can infer and if she and i let you finish her but if she made those representation why she not basically now stopped from denying the validity of those actions first in regard to making the representation the only thing we can assume from that is a credibility issue it best we have two affidavits in this case which are contradictory we have a statement in the bankruptcy we have an affidavit saying i never gave him permission to sign my name to the mortgage now as i indicated in my brief in bankruptcy cases debtors are often forced to give up the ghost so to speak they want to keep their house and that signing of the notice indicating that she would reaffirm that does not under the bankruptcy code is only that it's only a notice i will reaffirm the debt if given the chance the second half of that transaction requires the bank to give the court the dr a reaffirmation agreement under section five fifty one of the bankruptcy code and the two part yes q before you go farther with that that's not the only thing in bankruptcy that bears on this because in filing a petition for bankruptcy you have to list all of your assets and all of your liabilities and why should they not be bound now by the way they listed by what they put on their schedules again in response to their issue this is not the same situation as the judicial the stop all cases raised by the other side this i believe falls into the demarco exception which i indicated in my paperwork in the demarco situation we have a situation where the asset did not exist at the time of the of the bankruptcy that is the exact same of the asset you're talking about is this claim under the fair debt collection practices act but what i'm talking about is in order to file for bankruptcy the heads had to list all of their assets and all of their debts and the way they filled out their schedules indicated the property as an asset the mortgage as  why are they not now bound by that representation which is critical to the bankruptcy proceeding is it not it is and it was and it remained property of the bankruptcy estate as an asset and as a de becomes what happens to it after we come out when we came out of bankruptcy the case was still sitting there the judicial foreclosure case at that point inside the bankruptcy the creditor could have offered the reaffirmation agreement they didn't my clients would have signed it had it been presented to them they wanted to keep their house when they came outside of bankruptcy they're expecting somebody to set aside the stay in the judicial foreclosure action and that they would deal with that at that time they would either litigate it or they would settle it and pay it and resolve it they wanted to keep their house the problem with this case is the actions of this prevented them from doing it nothing except sheer ignorance and you know you argue that overhead now they've come out and the thing is still pending they want something but it seems to me paypal inconsistent that they get out into bankruptcy context could say we have a we claim we assert an interest in this property and we list this mortgage as a debt joint debt but the trustee was coming in and saying i was did not have notice of this there was equity in this house i could have sold this house i could have paid dutch from it but that's not the situation here the situation here is an after on the other that's all i'm talking about not the trustee but her inconsistent positions with respect to this mortgage and the obligations that flow there from other than you've acknowledged that they could have hoped that the head that could opened up the administratively closed matter as could a creditor i agree your honor the only thing that i can say having done a lot of bankruptcy in the west thirty years there's debtors are not the brightest people in the world regarding what comes out in their paperwork they're not highly sophisticated all they knew was they wanted to keep the house if you look at the history we fight over the attempt to take it we fight over the we've attempted to keep it in not however there has been an escrow start up there is what the court is not aware of because it wasn't put in the bridge was there is a simultaneous action going on against the bank under state law under state law when that action was filed in october of two thousand and twelve they put in escrow payments making escrow payments in order to have the right to stay in the house until the case is resolved since october of two thousand and thirteen they are pa core and there is one point that i want to touch on but it appears that you have a pretty good understanding so by all means jump in and ask questions if you have had them before and i'll address those the point that i'm not or clearly as i should have involves you came out of the ratification argument that you discussed a little bit with opposing counsel and involves what happens with the debt in the morgan is basically my discussion of the statement of intent the statement of the ten was talking about the debt and it involves the mortgage it did concede that there is a more so in any loan you understand that there's the debt there's the mortgage and after bankruptcy discourage goes through you can't sue on the debt a more but the mortgage is still foreseeable so this relates to both of their claims and when i say both are claims i understand that they have a claim involving the state court action being discontinued and a claim involving mr had died signing this is at odds signature in terms of the discontinued action theory the discharge of the discharge of the debt  prevents them from suing on the debt is relevant because the statute the foreclosure statute they're talking about doesn't prevent a foreclosure action soley of foreclosure action and an appetizer and  it prevents an action on the debt that is pending at the same time as foreclosure action so what do you argue was the effect of the administrative closure because stopped short of saying discontinued means dismissed it says stops ceased and i'm pretty sure that the ministry of closure stops and sees a case it wasn't going forward at that point and it won't go reality of it is even though it could be reversed by someone doing something affirmative to top it back up in the order expressly says that either party and motion can you know reopen that and this gets to the point about the  discharging the debt there's no point to reopening the action certainly not the claims suing on the debt after the bankruptcy you can't there's an injunction if you tried to restart those claims you're going to get hauled into bankruptcy court and have to answer for doing that so there could not be any action once they were discharged so i guess my arguments two points when they enter the administrative closure that stops the case and i would say unders interpret the word discontinuing the statute as discontinuing that action and the second point is after they were discharged from bankruptcy there could never be an action on the debt that actions done you can't sue on the debt after they've been discharged from bankruptcy the mortgage still exist so they could still foreclose by advertisement but again the statue only speaks to an action on the debt or what is your view of what actually happened  at the end of the bankruptcy proceeding and immediately prior to the discharge when they expressed an intention to reaffirm but according to your opponent they didn't write it and i understand and i also understand that two members  agreement and reaffirm that and all agree that it doesn't appear that they actually entered into that agreement here so the debt wasn't preserved but again and that's why i think i wasn't as clear is i could have been  discussing the ratification and the discontinuing aspect of what happened in the bankruptcy my citation to the statement of intent is just another point in which this arena had  yes there is a mortgage on this property and the mortgage still existed after the bankruptcy so whether it's ratifying through her original schedule ratifying through the statement intent or judicial for not sharing with the bankruptcy court that she disputed that i think she's bound by what happened the bankruptcy and the mortgage is still forcible was there reaffirmation of their staff to dish or dish they didn't do anything of that that my m bankruptcy oh and to answer that they still kept the property they have been there so it's pretty nice to answer the question about the time between the discharge in the foreclosure sale was july twenty eighth two thousand and nine was the discharge of bankruptcy and may first two thousand and twelve is when the four closer happened so that's a three year period of not making payments  also in preparing for this i guess just give basically the land so that we understand that they are the two claims for the first one the discontinued state action claim is under subsection six c which involves exempt property we have two arguments about that the first is the argument about the mia discontinue and the second is there you know about even if you don't think the for the state court action was taken plea discontinued this property was never exempt from foreclosure it was always subject to a mortgage well they never claimed through the bankruptcy that a based on the forgery and we have four humans about that the one is judicial a stop one that's based on her failure to dispute this issue or raise the invalidity of the mortgage which if she has i mean this isn't something without practical consequence or effect if she had brought up the fact that the mortgage was disputed the trustee could have done something about it and there would have been more assets in the state and some of the debtors including in this p paid but she didn't you know and there are reasons for that but she can't you know there are all sorts of nice descriptions about this in the case of the can't blow hot and cold you can't have your cake and eat it too in terms of how parties interact with courts when you make a furtive representation of the court that there's no dispute with this mortgage you can't then go on and turn around and say oh great that court bought it so i'm going to get this other court to say oh yeah and you know get your cake  claim is part of the bankruptcy estate i get it that their claim as it's structured a rose after the bankruptcy were arguing that based on what they did in the bankruptcy they can't are going to central fact that is necessary for them to aquittal mortgage involving those two claims and if you have any questions i'm happy to address them in preparing for this i understand that two members of this  after the fact and this court said that well no you don't you don't get an equitable mortgage they may have intended to give you one but but the bank forged signatures they never signed it so we're not going to give you a network i think that's distinguishable from this clase most of it significantly because mr had died not only found his name but he also signed his wife's name not to mention the witnesses and the witnesses i was forget the witnesses  and if you look at the course discussion in that case in this distinction of the sram case it distinguish it based on the fact that that is what happened the sram where the husband signed away signature and in the siddur case the court also pointed out the equity really wasn't necessary to apply because the wonder still had an action on the debt in that case that's that's not the case here so i think if you're weighing the equities and i think that's what judge amir ultimately expressed that just a couple of points first in regard to that order i heard counsel indicate that you could still you could not proceed with the foreclosure judicial foreclosure and i don't believe that's correct the judicial foreclosure is still a foreclosure of a mortgage he's arguing that the mortgage survives were arguing that the mortgage was  in any event the entire crux of my complaint is that had they not gone around the pending foreclosure or judicial foreclosure this could have been aired out in a court it could have been fairly de sided who ever case was right but this debt collectors actions deprived my client of that right when there was an order making that case pending when it could have been reopened when it could have they could have just as easily gone as my clients did instead they went the wrong way they went to sneaky way they want to round my clients back denied him his right to reopen the kid to go back into court and argue to a court that that mortgage was void and that they shouldn't be held to it there's a whole variety of issues there your honour's of picked up on them i would also point out that yes my client did sign that mortgage he did sign his wife's name he did sign the witnesses name there's an affidavit and there's deposition testimony from my client i'm record from this court telling him the bank officer told him to do that there's a whole variety of factual issues here which have conspired to disallow my clients their rights to that you do show action and that's the whole crux of this case from my point of view second thank you think we do not thank you counsel thank you the case will be submitted clerk i call the next case