dismiss for three reasons first the district courts conclusion the mis need to fail to plead a breach of contract claim was incorrect here the trial period plan is a contract under florida law because the satisfies the force and requirements set forth in the russell vs nation store mortgage case which i cited in our brief those four essential requirements are on offer acceptance consideration and sufficient specifications of the terms of the agreement just out of curiosity and i'm sure there are thousands and thousands of the trial period plans throughout the country not just in florida have you ever in my client's favor and that was not done here as you will see the record clearly establishes that there was an offer is misleading or fulfilled the trial period plan requirements she would receive a permanent loan modification that required pay thirteen hundred forty two dollars a month there was acceptance in this nino made the payments as required under the solicitation that was provided to her from flexed o r contract if there was one said she would make these reduced payments and she would satisfy the other requirements of the trial payment plan correct the only other requirements that were conveyed hers that she had provided all we'll get through this a lot faster instead of you reframing my question if you can answer it please do if you can't tell me there were other conditions in this p p correct yes or wrong or did she timely comply with those additional conviction conditions or did it have to await her bankruptcy she provided all of the documents a requested of her one of which was  which was she gets the subordination through by virtue of the bankruptcy correct i would not agree with that statement as you've made it your honor because there are there are very contradictory provisions within the t t p itself as to when the contract will be formed there is one statement in the record i'm not trying to give you a hard time you simply stood up and said she  itself the argument can be made that she didn't she did not even need to do what she did in order to establish a contract because there is a specific provision in the t p that merely says once you make all the payments we will send you a modification agreement and that sentence conveys to her that all she needs to do is make the three payments it doesn't say anything about having to provide the additional materials that being said she did provide all of the materials that would that was something that was accomplished during the twenty months between the initiation of the loan money for the t v p and the eventual execution of the contract by ms nino  not according to the language of the agreement that they sent to her that simply says once you make all the payments we worsen do a modification agreement and she continued to make the reduced payments throughout the period when she was under the impression that should be given a modification honor but that is completely sufficient if for no other reason than flag stars council admitted that it was consideration because it was not a requirement in order to subordinate the regions alone opposing well i'm not entirely clear on that point or arm myself i was not working with the new at that period of time she had a different counsel i'm not sure if the suggestion of bankruptcy came from flags or whether it came from let's stop right there and just and just dumbfounded about your argument about all she had to do is make these payments and looking at this trial frak to trial period plan agreement and it says way you are relying upon i guess to qualify for modification you must make the following a trial period payments in a timely matter and then it lists three payments that's what you're lying right yes wrong so what do what do you do about the next sentence which says after all trial period payments are timely made and you have submitted all the required documents your mortgage will be permanently modified do we just for some reason you don't think we should read that sentence you should certainly read that sentence your honor and what you told me a minute ago that you didn't think there was that she had to do anything you could read the agreement in a way that she didn't have to do anything more than make the three payments and i'm just trying to figure out how you could possibly stand here and make that argument because in a separate place on page four fifteen of the record that you're quoting from there is the statement that says that only has to do is make three payments and on the page before on page four fourteen there's that other stay that's on the on the first page of the document that they sent to her ok so your argument is that she accepted it and then she just didn't meet the requirements for a permanent modification for months and months and months is that your  she accepted it by making the initial payment they requested the additional documentation which is referred to on the second page of the four fifteen that your honor was quoting from the paragraph before that said this is the first step towards qualifying for more affordable mortgage payments this is a process it's certainly ended up being a process but it's a process that ms nino completed and complied with and did everything that she was that the modification that she got once they gave it to were they had already breached it she got a modification which essentially you're claiming took too long to get and she was damaged in the meantime but that time period was what it took her to satisfy the requirements not for the trial payment period but for the language in the trial payment period to get a permanent modification that's what it seems to say on its face it did not take her the entire head from when she gave her the subordination of the reasons alone to when they finally gave her the contract and said you need to sign this by the time period you're complaining about then from the subordination to when she actually signed the perm modification that in the fact that six thousand dollars in attorney's fees to the loan when they said they were not going to do so and when they added one hundred thousand dollars a new principle based on the delay which it's our position was not entirely her fault now granted there was some delay because she had to get the subordination but that's not entirely you know tribute of all to her given that the flexed are delayed on the backend not withstanding the fact that the original document that they sent her said that once you make the three payments we're going to send you the permanent loan modification but she didn't get the permanent loan modification till twenty months later what the actual agreement says and it doesn't that i would say well i respect what you're saying your honor but i think that there's other portions of the agreement that are more favorable to my client's position and seeing as we're on a motion to dismiss and all differences are supposed to be reviewed in my client's favor you know she in new principle by saying that the payment that she made of thirteen hundred dollars which was the modify the lower amount that she had made the entire time didn't sufficiently pay the interest in princip add anything they simply didn't subtract she always oh this hundred thousand dollars and tell the loan got modified is that a fair statement no your honor because the amount of principal that she owed from the time she asked for the modification to the time when she gave it actually increased so it was new money that was added to the value of the loan that she did not owe at the time she went and it could be construed as the deficiency but it was also additional interest based on what they were alleging was a deficiency because she only paid the thirteen hundred as she was offered under the t p t but what you want her to get is you want her to get the benefit of the lower interest rate and the credit for having paid the full payment i'm out even though she's paying a partial payment prior to the permanent modification that's what you're claiming she last during the duration of the c p p which was calculated by the thirteen hundred amount the lower monthly payment versus the time of period it took that was not properly allocated to her loan once the permanent modification was put in place because it was basically consumed by the new interest that they added to the prior loan balance rather than attributing it to principal and interest like it should have been making and what her regular payments were being rolled into or capitalized into the outstanding principal balance of the loan and that is addressed in the it's on the second page there's a question that says how will i know if my loan permanently started modified permanently and how the modified loan balance be determined the second senate says any difference between the amount of the trial period payments and your regular mortgage payments will be added to the balance of your loan along with any other past due amount as permitted by your documents but this will increase the total amount that you owe it should not significantly change the amount of your modified mortgage payment as that is determined based on your total monthly gross income not your loan balance what happened here  all it says with respect to fees and the reading of fees i think is far more narrow than what mister has assumed it says that it will you will not be charged any fees for this trial plan or a permanent modification and it says if your loan is modified we will waive all unpaid late charges it's silent as to the fees that were accrued for attorney's fees she was in foreclosure during this time period that foreclosure was dismissed after they signed the permanent modification but during that time they weren't proceeding to sail and were trying not to aggressively pursue for closure because she was working through these issues i'm trying to get the support nation but ultimately  encourage attorneys fees now the mortgage which is the original document it governs these parties relationship the mortgage permits start to either capitalized that into the outside in balance and or secret coverage of it from the b the she seems to be claiming that this six thousand dollars was charged as a part of the t p p is there any place where we can look to cooperate you're saying that that was charged may set forth that amount it wasn't a a fee that was charged for the loan modification so we years ago i modified my loan because my bank had lowered interest rates and offered it and they said it's you know here's a monthly payment it will cost you in order to do this because it's similar to refinance that is the type of feed that they're referring to is sort of the overhead cost for the institution of modifying the loan and that's not what was charged to what was charged her attorney's fees permitted under already required by the original mortgage and it's clear under florida law that preexisting duty does not give rise to consideration so for example the subordination agreement which they have alleged is the consideration for this agreement an agreement to agree and there is a case of it's not a contract it's more of an agreement to agree essentially it sets forth here here's what we're offering if you can if you can satisfy these conditions then we're going to go ahead and modify this but if the remaining terms of your mortgage will remain in full force and effect and that's what happened here and that's why they needed her to obtain the subordination agreement her loan balance at that point had gone higher than what the original debt amount was that they thought was the consideration when there was a regional consideration for her agreeing to make sure we had first lien priority was giving her the money to buy the house so their original consideration for the subordination and requiring that question and you know the new agreement she has now getting back into a permanent loan situation where she's current i mean the company is obviously vested in having the entire debt paid off whereas before it didn't look like at i recognize that's probably not the most artful answer in light of the fact that she had a preexisting duty from the very beginning and so you know ultimately the loan modification is that extension of the original mortgage the consideration it already been provided several examples that forth in it especially including the fact that the interest rate may be fixed it might be variable if they offered her a below market interest rate which is what they did by the way so her payments were actually much lower than the c p p payments alternately when are permanent modification so that is indefinite terms argument as to why this cannot be a contract however we also have the idea that there was no consideration that would make this a  that would make this an enforceable remit either and that is the argument that the magistrate the district court judge looked at in finding that the breach of contract claim had failed so if you would like i correct and it's the one that was adopted by the district court that view is that the exemption in the statute that says if you are a bank regulated by the federal government the statute does not apply to minority cases have looked at and interpretation of the statue that interpretation reads and and into the statute which is actually an order it's it looks  get to the activity question because the plain language of the statute in this is what the district court found and there are several other cases that i found this as well doesn't require you to do that if you're able to satisfy the fact that the energy itself is regulated then you don't even ask the question about the activity you only get there if the entity itself is not actually right then you can argue all the activity still is and therefore the exemption would apply regardless even if we well and that would be another reason upon which their claim would fail i mentioned there was a fourth claim that goes along with a breach of contract claim which is the breach of good faith and very dealing obviously it's derivative of the breach of contract substantive issues raised in acute that sense change to a smaller period of time but at the time it was sixty days that sixty days ran in october of two thousand and thirteen in this case was not filed until december nineteenth of twenty sixteen now plaint has advanced the creative argument that the statute of limitations does not start running because you need to have damages and that's an essential element of a claim under twenty six and five the problem with that other than the fact that there is absolutely no eleventh of two thousand and thirteen and she signed it i think a week later that was still within the three year or so outside of the three year window for statue of limitations purposes that c p p identified that her principal balance had increased to think it's eighty five thousand dollars on a hundred and eighty five thousand dollars of which she complains are her damages now so she was aware of her damages at the time and then finally as an attorney personally i find it quite terrifying identified as acute as you are and sometimes sent through us and will handle and that way but an email just saying hey what's the status of this loan modification agreement to find that you can give that would give rise to our rest a claim would just create such a dangerous precedent and was clearly not intended by congress and that is all i have unless you have any other questions thank  of can file suit and obtain relief miss reno would have been unable to obtain relief on the statutory claims that they're both cases are addressing or they come claims that i'm not entirely clear on your common law claims then why would that language in those two cases change what seems at least to be clear on its face the statutory text you've got to file within sixty days of x and it w when she has no damages because the t t p or the loan modification has not been executed and so therefore there is no damages and so therefore there is no there's an inability to obtain relief because damages or