unusual set of facts specifically for california courts which is a cooperative on the issue in a cooperative is that the security of the bank is or will take one step back and it cooperate if the only thing that the owner of the unit has an interest in is the lease between their fee simple owner which is in this case ocean towers and the owner of the unit becomes the tenant of ocean towers and in in addition to that these there is a stock certificate issued by the corporation in this case ocean towers at which point in our case the defendant went out obtain briefs we do believe that the defendant should have mitigated it's damn right that's not separate question recchi there's california has as most western states do a rule that if you have a loan secured by an interest in residential property that you must p that issue is after the defendant failed to pay their loan payments and they also failed to pay their lease payments which are essentially they're actually payments to ocean towers ocean towers brought in on lawful detainer and which ended in terminating the lease the one issue i think that leads into the problem with the one action rule is after the lease was terminated by the on lawful detainer judgement what happened with the stock certificate there is no case long california deciding that issue although it is it is it your position that the bank had an obligation to cure all we think that if the issue if they start to pick it hasn't been terminated yet the bank still has its security which means that he should have brought  action for a judicial foreclosure and obtain whatever value there was in the stock and a deficiency being the balance or in a way it goes hand in hand with mitigating their damages you well i have because the loan agreement says there's no obligation to cure you agree yes i do understand that your honor but there is sitting the the second issue that arises even if we argue that the stock certificate was already terminated or it was terminated along with the lease the second problem we face is that ocean towers never had a lien against this property ocean towers which is the feast simple owner of the property only had a lease as a landlord and us bank is arguing that there is fold out junior lienholder well where is the first mortgage how were they folklores the pawn they've actually never been foreclosed upon the property has never been foreclosed upon the only thing that has taken place senior lien holder your honor i do understand their argument but this is that again once again because this is such a rare set of facts and no court has dealt with this issue at least in california do you agree that they lost their security because of your client's default they did lose the security in the lease your honor that's correct well it whatever security they had they lost because your client defaulted on her obligations correct well that and that issue has not been decided your honor and even this court or any other well no i'm not asking whether the issue's been decided i'm just asking as a matter of fact isn't it true that the bank lost its security because your client failed to perform her obligations that's correct don so if that's true then why don't the cases under the anti deficiency statute which talk about the plaintiff being relieved of its obligation under the statute when the loss of security is caused by the defended why don't those cases apply they do your honor and it's not in our brief and you're correct that argument is not the anti deficiency argument is not no i'm not talking about your deficiency i'm talking about the one action statute there's lots of cases under the one action statute that say creditor is relieved of its obligations to pursuit of security under the one action statute when the debt tour would lead to his actions make it impossible to pursue the security or so why don't those cases apply here but that doesn't make it impossible yawner that the the fact of the matter is that in this case u their lease payments so it's empower us bank decided they're not going to do anything about it their day to day should have worked in your view they should have foreclosed before the unlawful detainer yes right well they had actually started the foreclosure process because the defendant in this case stopped making their mortgage payments first and there after stop making the a choice haman's and therefore the foreclosure process had already started way before they even received notice that the the borrower is behind in their a choice payments and once they received notice they sat back and  absolutely nothing they were damaged beyond it had to find that the van and stop making the payments clearly the defendant breached the promissory note and i believe that they would have an obligation to mitigate their principle of mitigating it that your damages on a breach of contract go on or you think that overrides the language in the contract it doesn't it's not in conflict with the contract just because the contract says that they don't have an obligation doesn't mean that they shouldn't and you know in a situation it should but here's here's my difficulty because you said at the beginning this is a strange situation had the bank foreclosed on your payments on the right and this is not precisely what the the contract says it's not required to do that's correct but at the same time it could have secured its that essentially which is have foreclosed which take off and do on a condominium project they would have had to pay the h o a fees which is the same as the lease payments in this case until the property sold or they may have actually been paid in full at an leasehold interest can beat security for the loan but when the leasehold interest is terminated that extinguishes the security for the loan can you respond to counsel argument if i could rephrase it maybe a little bit for says look you knew for a long time that we that my client was in default and sure you could have just at that point foreclosed in and she wouldn't of been personally it you know there's there is there are a detailed factual history there was initially dispute over whether notice was properly supplied on the fall i mean that's all water under the bridge we can see that's water under the bridge but claiming that a sold out junior interest cannot cannot secure payment after the loan after the security has been extinguished when it is in the lease you don't have a junior interest i take it you could have seen your interest right here it's usually for example common maintenance fees some sort of some sort of monthly obligation that goes with the the protection be assessed against the we see it all the time all the time homeowners associations will foreclose on on on somebody who is behind on h a way to use common area dues and whatnot it's not a unique scenario did debriefs don't deal with this what's the condo complex operator has its lien for which one has a priority well you know that that can't be answered in the abstract a lot of times there's there's agreements where they will allow one or another to be in a higher position especially in the context it can vary by position sometimes depending on the scope of the specific project we're talking about a lender won't lend unless they're allowed senior position that that can vary depending on the scenario but it's undisputed here that the position of our loan was secondary to the less or less or is interest and it's just that it's warm brooklyn or the glendale fed case that a a less or senior less or forecloses you you've lost your security and that's why this is no different than the traditional context of a sold out junior losing its security and being able to go after the no not only as a matter of laws that does that follow but the express contractual provisions and it appears miss lott is arguing that we shouldn't have done this or we should have done that the law is clear the cases cited in our brief it's not for for the other party to question the business decisions made under a contractual right of whether or not to step into the shoes of a of a defaulted person in this flooding's position that would require assuming we foreclosed we'd have to step then we'd have to pay the default amount we'd then have to keep paying her monthly dues and there's nothing in the law that says well you know in this situation maybe you should in that situation maybe you shouldn't i mean where would that line ever be drawn and the fact remains that in this particular situation we have someone who obviously was defaulting in a myriad of contacts and to allow that it's nonsensical to allow someone who's defaulting to her landlord and to the bank to escape responsibility and that that's what that was at the was that case discusses where the neck witty and the illogical result that would follow from someone in that there there is other there has been other litigation concerning this entire building it's outside the scope of what we're here for today to put  diplomatically the the defaults to the building resulting in this type of scenario are a bit suspicious and this wasn't the current status there was a prior perceiving involving involving us bank with i believe other loans involved in that building but i really can't speak for that as  my firm is not was not counsel in that particular matter i don't even know if it's still ongoing but you don't rely on that in this case no not at all i don't think that has anything to do with what we're here for today i think the district court's  to discuss assets and whatnot with this flooding but if you had been able to to get a judgment debtors yeah but that's again that's you know we're open to speaking with counsel and he and i have a fine relationship that's that's really not but other than that i think we could stand on on the briefs from from them on the side of time anyway and self with that unless the time wasn't for the question they have any