court has read all the briefs in the prepared and so i'd like to start off just by asking if there any concerns or questions that you any of the justices have i'd like to start with those of was i i do have some comment floors yours thank you what the court has before it this morning are a few issues that i've believe are probably divided into two separate camps the first one is the statutory damage claim made by my clients under the truth and linden act for violations of that act and the second one is a claim a separate claim for relief also owns or to the limit at four rescission the two claims are completely separate governed by different periods of limitations to bring those actions it at the circuit court there appears to have been maybe some confusion on that point and the two were conflated in the one and the counter claim for statutory damages were dismissed along with the rescission claim have been kept at the four thousand dollars per counterplay and i was beside us involved in that broke more than likely i'm sure u s bank would have asked that that amount be set off against their their all to me judgment but that didn't occur either because the counter claim was dismissed in its entirety so my clients didn't get that relief either but you know just trying to figure out the math here wouldn't the set offs be much greater then any damage claim that your client would be entitled to i believe that's probably true i'm sure the judgment of foreclosures in the appendix if i'm not mistaken the ultimate judgment was in excess of three hundred thousand if i'm not mistaken and i think that's the number so my clients four thousand certainly would not of absorb the entire judgment against them so if the case were to be sent back on that issue that the court would look at and say well you have four thousand here you've got three hundred thousand here i'll just do the math and you have heard of it's over it's just a relief that you're seeking ultimately that  probably should have occurred is that a counterclaim if it was litigation we were successful then they are judgment of foreclosure were they to perceive one would have been reduced by my client's statutory damage claim in addition to that of course there's the award of attorney's fees and things of that nature as well that would have to been addressed but again none of that got addressed because the chemical you simply dismissed from tell me about the beach case and how you think you get around well the beach case because each only just discussed if we are assuming my client's initial notice of their election to rescind that loan came more than three years after the long was made but here i don't find anywhere in any of the four letter specifically set forth the language that has to be used in order to elect instead both of them talk about their just being a written communication so we don't have a ton of guidance from meet the language of the stache are we will form that the federal reserve board created itself for the purpose of a consumer getting noticed that they have this right in electing to use the right that friend that they created simply says i wish to cancel it doesn't say i'm reddest the letters clearly set forth a team of violations had occurred and to my that my clients or wanted to rescind the loan and the discussions were how to resolve their being litigation over that i think it's important to point out rescinding alone doesn't the decision impeach actually sets forth what we here discussing as well which is the time limitation set under sixteen thirty five f which is the three year period everybody's from your year with speech recognize  like facts one of the issues i have with the terry decision is it reached the conclusion regarding thirteen to all seven and it wasn't before the court at the time thirteen to a seven was not before the court and it didn't need to discuss thirteen to a seven week end the discussion they have about thirteen two of seven there isn't any consideration of any case law with respect to brother or not thirteenth or seventh could be used to save the here that during this three year period of time the letters were written and then some eight months or so before the three year date there was a motion for leave to file the counter claim and then it isn't until the day after the you can read in the record in that i've seen can't really discuss stuff that isn't in the record what you read from the record is there were continuing attempts at settlement and not from not mistaken there was a nother letter written after that initial motion where the proposed counterclaims attached so it was not filed regrettably until one day after the three years have passed we had to do all over again i'm sure that would not have happened but we're faced with the facts that we have but nonetheless that motion for leave even if that was the only thing that was ever written was sufficient i don't think there's any dispute among the parties that the motion for leave despite whatever language issues could have been a basis for electing  even a circuit court recognized the harris versus always side financial case where of the counter claim is a notice of intent to rescind because it only needs to be a written communication doesn't it have to be a specially address the loan under teela assuming of course that they have a right to rescind and in this case for the purposes of motion down below and for this appeal we're going to assume that they have a right to due to rescind that's that issue was never litigated but we're going to make that assumption that they had the three year period to resend the answer to how they do it is also simple all they have to do is give timely notice that within three years of their intent notice on i think you can argue very and make a very good argument that they have to follow the action i think that you could also make an argument that is good but you can make an argument that notice is sufficient but i don't think we have to make we don't have to decide that here because if it is filing that was late and if it's noticed before it is in time they didn't do it anywhere here in time the letters themselves were all conditional no where in the letter did they say something simply like i were send we intend to resend we wish t still may have to file within three years but i recognize that they have a better argument if they had done that but again i don't think we have to reach that point because they didn't do that they said if we're forced to litigate we'll file a counterclaim which will contain of intent the ricin is made there is obligations on both sides frankly which is why i think that counsel was very careful in their language i think is a case about sloppy language i think this was a case in which counsel was very careful as sophisticated counsel in this case counsel was very careful and not rescinding because obligations then happen on both sides one is twenty days that the lenders have to return all the property  well but they do have some point have to tender either the property back or the value in one way or another so it's not surprising that they wanted to use the threat of  leverage to get a loan modification but weren't quite ready to pull the trigger and actually was sent right so i don't think the letter the letters are totally conditional let's talk about the motion the motion for leave the fi i think you could again make an argument that a motion to leave the file can contain the necessary notice of intent to rescind this one didn't this one you have to look at the language of that motion it's very carefully here's what the motion says they're seeking an opportunity to cancel the transaction by follie filing the counter claim that's the exact language that paragraph seventeen of the motion the exact language of their motion they're seeking an the that is a judicial admission frankly that they can't contradict they are admitting that nothing they did before hand constituted rescission nothing before they filed that motion because they admit in their counter claim which was not filed until it was late that now and only now the twenty day clock starts to run now and only now there is a note of the notice of intent to resend and then the election to rescind and regulations e requires now the statute if you argue that the statute is is ambiguous and you give notice of intent whatever that means it says the statute says notice of intent in accordance with the regulations by the board those regulations are found the regulations  statute the limitation period that's built into teela is the statue of repose that is clear that's what terry found that's whatever the case that look at it is found counsel doesn't deny it what counsel says is ignores that sixteen thirty five f the three year period is a statute of repose so what but beach also said which is that surprising or not necessary relevant it said that under tilla there is a limitations has that language in it very pointed out the other cases the thirteen that's two one seven talks about the limitations period ten big us because of that in big unity the court will say well we'll let that ambiguity include a statue of a poll same for the other one  that dealt with i think it was to dash two one five which is the fraudulent concealment statute that had that eight same kind of wishy washy language which allowed the court to construe it to include as that of the polls can't do that here there's no in art for i phone drafting here so tell me what you think about the damages and why the judge was who allowed the dismissal on something that wasn't even discussed well because they found the one count complaint one account dismiss the entire count we argued on the essence of the count that it was rescission and it was barred the fan this monsoreau should have said wait a minute judge there's also a damage claim here and we have at least the right to have meant to raise that damage claim as a separate action they didn't do that or you're saying that by their silence in the hearing yesterday and the fact that they were combined into one count is effectively waived yes yes very much so very effectively what technically we can stop that or you have that right and it would be you know we could live with sending this back in order to litigate whether or not they get the four thousand dollars and remember what they're suing foreclosure amount by four thousand dollars doesn't change one thing it doesn't change one thing and they did effectively waive it you can also argue and i think correctly that the damage cla itself is by by the statue of limitations because under sixteen forty you can bring it within one year or if the foreclosure case is brought after the one year after the one year period is over then you can see it's not abided by the one year here the foreclosure place was not brought after the one year period was over so it the damage claim i think is subject to argument that it's that it's not it's not saved it's passed the statue on patients anyway now that this isn't very quick inclusion of the one thing i just want to make it very clear in this case we're not trying to take away any rights that borrowers have to rescind all we are asking is that the court can force the law as it is which is they have to give a clear present intent to rescind so that lenders know when that here there was some suggestion that our silence at the hearing on the motion to dismiss somehow waived our right to complain that the damage claim was being dismissed what he should be looked at though is that that issue was actually raised into the court actually dismissed everything because the briefing as well as argument was all about whether or not the time limit for recision had passed the first noticed anybody head why didn't you brief on damages because  entire counter claim that the damage claim was dismissed it was never any arguments about that from from any party including u s bank so that's why it's not wait it didn't occur until the circuit court did it there was period starts well the problem there is we'd be adding to the statute into the regulations something that isn't there a requirement to use certain specific language and so there would be prejudice to balderas because now you do have to write it's been elected there is a remedy for the lender so that they are not prejudiced they have two options either comply and simply begin rescission period or to come the court in ask for relief u whether or not the burden is on the barriers or the lenders to use specific language and to take action there is no burden on the borrowers to use specific language there is a burden on the linders to act so if there's counsel makes some use of that the problem here is this i think u s bank is losing focus that we're talking about the truth in lending act which is a consumer protection statute which is supposed to be liberally construed in favor of the consumer when we consider the fact that tiel are supposed to be a consumer friendly statue and it's supposed to be literally the reason why we're pursing language councils because this is file play well if there's absolutely no doubt we could leave them in a different argument proper notice within the three years that's not specifically brief by any of the parties but there is a case on point in the briefs that's the in rate hunter decision that case actually did decide that issue it's kind of a i don't see a new argument but it is an argument that has occasionally been raised by members that we don't care when you wrote the letter telling us you want to see in the lawsuit needs to be filed in the race hunter decision has that specific issue addressed and has ruled that no as long as the notice