good morning george for in this case it's fairly simple i would say this is a truth in lending act matter under fifteen u s c sixteen forty one g we're specifically talking about an assignment in  may eleventh of two thousand and ten on or about that and whether three years of equitable tolling should be should be allowed even though the assignment was recorded generally we've had rulings in this regard that says a record ation is all that is necessary to begin this statue of limitations however we do believe that this goes against the spirit of the truth in lending i can specifically sixteen in that it's supposed to give borrowers the direct notice of these backroom deals that they're generally are not privy to can you explain how your client was injured by the lack of noticed in kind create injury in the supreme court didn't say that right but certainly they brought it back down for review but i but i do believe that that was the intimation of the court if not the direct ruling we do believe hindering the ability of the mcqueen's to be able to negotiate with their true creditor for the loan modifications any type of foreclosure assistance did they try to negotiate with the wrong entity what they have of new york mellon which is the defendant specifically in this case never contacted them directly so they always were they always were dealing with the servicer of the loan as opposed to bank of new york was the direct creditor so and they were in a certain i so i so i still don't understand yet then how they did anything different by not having this notice well that well you can go above and beyond the services here it's not it's not that they did not try to write or they didn't know what this credit and that's the issue but they knew there was some creditor right i mean what difference did it make which bank it was and well it makes it makes a difference because servicers don't have a skin in this in the game so if they are trying to get a moment of occasion or foreclosure assistance then they can for lack of a better term put off the borrower and things of that nature however that all notices helps that in that he can truly directly contact bank of new york mellon but didn't he know there was some bank behind the service or all along well that's not clear i believe the mclean's only directly have been involved with the service or so so in that negotiation when when those attempts fail where else do you go you should be able to go above their heads so the speak and actually negotiating reason to leave the service or didn't communicate with the lender didn't forward whatever it received well i believe that or the records shows that the direct contact with the service or  doesn't mention bank of new york mellon and so that's the issue doesn't actually respond to the question the question is are any basis to believe that the service or didn't relay whatever it received or did not communicate with the  still believe there is communication in regards to mortgage statements and things of that nature no i don't believe any direct communications from the bank of new york were transferred between service or as the  don't believe it but my question was is there any evidence or reason to believe i mean it's easy for you to say nope there wasn't any you're not likely to know so why is it we should believe that that the failure to be able to communicate directly with bank of new york and i suspect just sending something to bank of new york's not going to be very effective but how is it how why should we believe that failure made any difference well i mean because in fact it does make a difference if you don't have to believe it's communicate with the party who has a true skin in the bank think about this your client drop something in the mail addressed a bank of new york mellon is not really knowing who within that bank is going to know about this particular deal as compared to the service or who is communicating on a regular basis with somebody at going to go through the service or anyway and has just gotten a saying we have no reason to believe they're not caught that the service there isn't talking to the right bank why does your client care at all my client doesn't have to contact the service or the and when negotiations fail with injured by the lack of information if they're not trying to contact someone so if they're only trying to contact the service or you haven't said it's the wrong service or and if they're not trying to contact any bank then i don't see how it matters whether there was a which bank it should have been they never tried anyway well if you you can try for something that doesn't exist yes i think there was some bank rate you don't deny that do you know i don't deny that they had a lender original lender so and so that they never tried to contact that lender why do we think that if the an inkling of wanting to contact the bank you wouldn't be able to contact but if you're not your client could say to us look we thought wells fargo was our creditor and so we wrote to them and we sent them money and they never did anything because they were the wrong creditor then you'd have an injury for not knowing which bank but you don't have that you haven't said anything like that can you tell us anything like that i am actually in that this service or is holding itself out to be that creditor and when the for those foreclosure assistance and things of that nature there should be some other recourse whereas he doesn't know of that other recourse because the servicers holding themselves out to be that creditor and so and so that's what i believe in this case i the injury is that they don't have true recourse with the true note holder which is the only only party that has any obligations under the loan including including the borrower himself obviously but those bank of new york is the only one that has the power to enforce that note and has the obligations the service or has a direct contract with bank of new york supposedly or something of that nature but doesn't have a direct contract with the borrower and so that's the significant part if they're holding themselves out to be the creditor themselves and he does not know of the second right of recourse that is in fact a concrete injury and that's what we believe and that goes with the spirit of  sixteen forty when she was just says given that direct notice and i think it's always then why didn't congress delete the statute of limitations or say it didn't apply to that provision i assume that they're relying on the same equitable tolling principles we can't we can't the congress and access statute of limitations but says it really shouldn't apply here and we're going to let the courts figure that out for itself we're not going to say that i mean the statute of limitations is in the statute isn't it and you want to read it out of the statute for this this particular violation well i think for six hundred forty one i think it's directly necessary because the borrower has no reason to know that a creditor has changed now under california state law they're on constructive notice in california doesn't have to say that but it does and so if under california law your client has received constructive notice then why should the limitations period start to run because truthfully that runs directly if i was sixteen forty one g yeah there's nothing about the limitations periods in the same statute you want us to pick one section of the statute and disregard the other because of some amorphous spirit i think it's a tough it may be however i do believe that we're not asking you to take out the statue of limitations we're saying that until he has reason to believe that a new creditor has appeared expected to just because there's a statue of limitations on the truth than good morning may please the court carry franch for the pallies my colleagues presentation i think nicely illustrates that there's really two issues that i think the court has make sense of first equitable tolling and second what impact ok oh has on noticeably absent from my colleagues presentation is any discussion of the reasoning used in spoken and how they reach the conclusion about how they are procedural violations or not enough to be a concrete injury the part about spokeo that stood out to me with this case in mind is how the court said that you're supposed to look at the history of the harm in deciding whether or not it's concrete enough you know whether or not the harm alleged in the case is something that historically and traditionally is protected by the courts and here the alleged harm in not telling them the queen's that bank of new york was their new creditor is not something that historically or traditionally has been protected in this is a particularly good example proving so the record in this case your honor should is that the parties actual contract the deed of trust specifically said that  my clients had no obligation to notify the maclean's at all if there along was ever transferred or sold and that is in the record in the third volume of the excerpt at page thirty three paragraph twenty of the deed of trust so if the mic wins in my client's had reached an agreement among themselves that we don't even have to tell him we'll probably not a negotiated term why is it it's not your honor to be fair but i think that actually helps my argument because in terms of like the historical significance if you trust the standard do you trust and congress comes along and decides that's not good enough and imposes an obligation to give notice i'm really not sure where this argument's going to mean you're you can't pretend the congress didn't pass w passed no course not and you can pretend that your client didn't have an obligation to give notice time to the statute the fact that the parties may previously agreed to do something else on terms dictated by the bank so what well the reason i raise the issue is if spokeo is telling us that a court in deciding whether or not the injuries concrete or not needs to the needs of i wait whether or not the right is historically protected then the fact that the parties themselves have agreed that there is no requirement to provide notice i think she should play a role in the court's analysis is the holder of the beneficial interest loan or the deed of trust necessarily the holder of the  there's there are two there are two documents there's the deed of trust and there's a lung can you be the holder of the beneficial or is no the deed of trust he the beneficiary of the transfer of the property but the loan is actually in somebody else's hand the note the person you have to pay is somebody else well the answer i think is yes your honor only legal fiction that's been generated because of a desire to make a trap just give us what they transferred to make it easier to transfer the real interest but to save some of the paperwork they decided to create what actually turns out to be a headache for all of us supplying the documents later so it's sort of a alice in wonderland looking glass world where you have separate entities holding something that obviously is meant to be common i mean you don't have somebody exercising rights under deed of trust and listen fact they've been the victim of a long default so the complications are generated lots of work complications created by lawyers are generated lots of work for other lawyers and sadly also lots of work for judges very well here on our other comment that i've made about spokeo briefly and this gets back to your comment earlier judge clifton  is unequivocal we want to arm homeowners with this information for better or worse that's what congress has said and spokeo says that congress's judgment should be given some credence by the court in deciding whether or not there's an intangible harm so in this case i think it contrasts with some of the decisions that were flagged in spoke a zero for example in  they highlighted two decisions where there was intangible harm and what at least on the surface was a bare procedural violation of the statute but the court nonetheless in those cases held that there was a sufficiently concrete injur i want to talk about those cases briefly because i think they're nothing like the present case the first case that spokeo flag was federal election commission versus akins and the second was public citizen versus department of justice in both of those cases spoke a remarked that you know congress has said this statute exists it was violated perhaps in those types of cases that's enough to be a concrete harm well the reason i'm flagging those cases is each of those involved a very different right in those cases akins involved voting rights and then in public citizen and involved in organizations participation in the political process both of those historically have received tremendous protection by the courts they involve fundamental rights whereas here in contrast in the quins are complaining about not being told that they had a new creditor the way i see it they're apples and oranges i see i only have three minutes left so i think if i mail shift gears to talk about equitable tolling and my colleagues presentation illustrated one possible problem with the equitable with the statue of limitations which is you know homeowners are not in the habit of monitoring what's recorded last time you went to the records office and checked out the the possibility of of something being filed on your property exactly right your girl is reading my point so i understand that point that that's a somewhat sympathetic argument homeowners are not going to run down to their recorders office every month just to confirm whether or not they have a new creditor are not and that's not what we're asking them to do so for a moment what i'd like the court to assume is assume my colleague is correct assume that recording the assignment of a deed of trust does not impart constructive notice the outcome in this case should be no different and there's two reasons why the record here shows that not only was the assignment recorded but in march of two thousand and ten the maclean's received a notice of default and on page two of the notice of default in big capital letters it said if you want to know how much you owe on this loan or if you if you want to arrange security or default or to stop foreclosure please contact bank of new york mellon and then it provided an address and telephone number and that is in the second volume of the excerpts at pages forty nine and one hundred thirty so why is somebody who receives that supposed to make sense out of it who's this bank of new york i live in california my lender was bank of america this must be a mistake and that's probably a scam you know i get calls saying i'll buy to the i r s i'm not sure that really gives effective notice and explains to the homeowner what's happened behind the bank curtain i think it doesn't if they're trying to invoke equable tolling your honor because the standard under that rule is that they have to be able to show that they were unable to obtain vital information bearing on the existence of their claim we've received something in writing telling them contact bank of new york mellon and that was in two thousand and ten whether or not the assignment was recorded or not at that moment it was incumbent on them to pick up the phone and start asking questions at that point in time now the last point relating to equable tolling that i think they have a problem with i see i only have about thirty seconds left is unlike most homeowners in the queens were not simply sitting by trying to you know watching the foreclosure process happen they actively tried to stop on page three of our brief it says the mcqueen's tried to avoid foreclosure by recording a unilateral revocation of their due to trust so my point there is they were put in a particularly good situation to discover the recorded assignments of eight because they themselves went out of their way to record an instrument of their own unless the court has in question submitted thank you we thank both counsel for your arguments the case just argued is submitted