this action against just mark national bank in looking at ex parte turner there are some there are very many similarities in that case and in my case mainly that they were not the turners were not given the notice that was required in their mortgage i was not given notice in my mortgage either that turner case required the lender to notify the requirement was a strict notice requirement that is that is correct your honor right and that provision also was in my mortgage and i was not given that i wasn't given any of them your honor i know you all have read your honors i know you all have read the briefs but it will i think it will this case will make more sense if you will allow me to sort of guide you through it do i have case is about it seems to me your strongest arguments are based on turner and based on the notion that under alabama law as i understand it you don't have to have actual damages for a breach of contract action the breach can support a an award of nominal damages just for a breach and to the extent that the district court the problem with this is it was not default on my part neither the trustmark attempted foreclosure twice and had nothing to do with a default just mark manufactured the default both times the first one i attempted to make my my mortgage payment i tendered the money they did not accept it  but as i i don't know whether you are aware that a problem with that this a line of argument is it's really not for us to determine whether there was a breach air or not it is i understand it the district has dismissed your complaint because as a matter of law if it has concluded that your complaint fails and the district court did th because the district court concluded that you at least had constructive notice of these requirements and the contract now turner would appear to suggest the supreme court of alabama would has said that there's got to be strict compliance with that notice requirement that is correct and so that would seem to undermine that aspect of the district court's ruling and then the district court also said that well there are also doesn't appear to be any damage here but that seems also to be undermined by alabama law which is i've read it suggest that there can be an award of domino damages for breach of contract and could only then we have to decide here is whether the rationales of the district court in saying that your complaint fails as a matter of law were actually misreadings of alabama law and we would send it back to the district court to further proceedings yes your honor because like i said my mortgage does require strict compliance and there was not strict compliance i was not given a i was not given a notice prior to acceleration they did the main thing is the default was not given at all ever the default if there was one was going to be the tax issue the taxes were were told until the stay was lifted on september fourth and september of two thousand and seven on september fourth two thousand and seven also there was an agree order tolling the taxes until the jefferson county tax collector's office had computed the taxes i was not given i did not have the opportunity to pay those taxes because they foreclosed on october fifteenth and the tax accounting was not completed until november twenty eighth so they they did not give me default they did not give me an amount for the default because they didn't know they would not have known it until november twenty eighth about six weeks after they foreclose your your home was foreclosed on october fifteenth two thousand say the district court judge said with regard to your notice on whether or not you were told you had a right to bring a lawsuit before and before a foreclosure the district court said well it was all learned afterwards because i had to i raised that point because the in the law in alabama is i've done my research  appreciate i come from a different circuit and so i have to study these cases with real care because i don't know the law of alabama and i traced the law in strict compliance back to one hundred thirty alabama has been severe weather that on the other hand there is a body of law represented in red when case in a perry case that in a essence says well if you already know what the notice is supposed tell you then not giving you the notice didn't hurt that's it's sort of like harmless error and that body of cases is there and that's what the district court judge implied to you when he said oh you didn't get the notice of the right to sue but you didn't need it because you're already knew but the basis on which you already knew was what you learn after that to late to be of any help to  greening i don't know that we have any other questions if you want to save the remaining time to you have for your rebuttal you may do so your machine had five minutes so we'll give you seven if you need it but we'll he as some of the court pointed out i believe the court held that the notice was never provided to the bar or of the right to bring an action in litigation the jackson versus wells fargo case the jackson barracks was fargo case held that in that case there was no notice before acceleration of the impending foreclosure acceleration the first notice was of the foreclosure and in this case judge balladry cites him relies on the jackson case to set out for the requirements for notice and from that case judge  book through filings and correspondence with ms dice arts council she would represent my counsel at the time that there was notice of default notice of what was needed to cure the two fall knows of a time limit which was extended to greater than thirty days to cure and that there would be acceleration for closure if there was no sure judge baldrick did find that evidence in her opinion of notice of the right to reinstate after acceleration do you agree with do you wish to write your own on the basis of finding out do and she also found there was no no  actual knowledge of the right to reinstate the discussion between the lawyers and writing in e mails to me shows actual notice of the writer in states i would modify my answer regarding judge outers opinion and in that way i think that necessarily the e mail exchange shows notice of the right to reinstate it was that because the lawyers were negotiating for reinstatement yes or yes now but how does that show that miss dice are had noticed before there wasn't a fault before there was a her before the foreclosure and this dye starts turning clearly knew the right to reinstate because it was negotiating about the right reached a right to reinstate but it's not the right to reinvent the stubbing of the to only have to breach one of the notice obligations to have more foreclosure and correct and that's what turner stands for correct under turner but in this case you have the additional founding by judge battery of actual knowledge both as to the right to reinstate and the right to bring a lawsuit more than just the right to be the lawsuit is what we're homing in on you on their district where a judge said  detained after the foreclosure have any relevance to the her state of mind before the foreclosure or her nish a lawsuit was brought by the same counsel she initially had and i believe the court was saying that that was that she derived that from that conclusion also point out that well that shows that the national council may have known that he had the right to bring the suit after foreclosure and there's no evidence in the record that the council of the showing of the council had knowledge contest of that actual knowledge of that specific factual findings you know there's a bottom doesn't doesn't your case here turn on your ability to convince this court that turner ab toes they didn't affect yes your honor i am arguing that unlike turner unlike jackson there was no actual knowledge finding and that actual knowledge banning was not contested in this dice arch original appeal brief she made some comments on her default and notice but she never addressed the knowledge element the actual knowledge finding about the court and you're exactly right that as our point is that if if someone has actually spanked your argument that you were required that the bank was required to strictly comply here right she's making the argument that they're at each one of those boxes had to be checked off and that the actual knowledge of the bar was irrelevant  our argument is that boundary found there was actual knowledge and therefore you cannot have a breach of contract for failure to notice if in fact you knew and furthermore you know i don't know how the district court could find that you had this you had actual notice of something before foreclosure based on something that occurred afterward i can only speculate i can only say that judge she was represented by the same counsel who filed that lawsuit and i believe indicated there was nothing she could do about the foreclosure and the record that was the testimony and similarly with respect to the reinstatement the fact that the lawyer was negotiating even before the foreclosure for reinstatement doesn't mean that there was knowledge of a right to reinstatement only that that was something the bank might do well i believe in the communications it was indicated if she could bring it current negotiation itself shows notice because he knew he could negotiate he knew the deal was available he just couldn't satisfy the terms he could not bring it current basically is what he said the if there's a br there's alabama law doesn't require actual damages does i want to dress in all damage on the it is true that there is alabama case law that holds that you can have nominal damages for breach of contract there's there's alabama sheet and possibly created this problem by having some loose language and not in our briefing but judge balladry actually found that since there was actual knowledge there could be no action for failure of notice rather than that there was no actual damages provable and second of all even if nominal damages were the issue even a pro se appellant has to show that has to bring up something in her falling unless it's plain air and in this case miss di started not raise the nominal damages issue the score raised it later and asked us to brief it in our briefing the first thing we set forth was that nominal damages being not substantive could not be plain error such that should not be considered by the court if not raised on appeal and secondly we would state as it did before that this is not a failure of proof of damages case this is a failure proof of lack of notice alabama law is out of ten album law that's correct my point is just for purposes of this appeal it was not properly raised on kind of the economy now it was raised by the court years been some supplemental briefing about it i don't know i don't know it at this point there has been but i still think playing air apply as when something is not raised original appeal even if the court ask yourself i'm breathing on journey i guess any explanation why there were the two tax sales and actually this property and saying to me that there was a must have been a lot of confusion well all that happened during the two thousand and four time period and when the bank have any role in that the bank did not the bank had the role in trying to seek relief from state to undo those tax sales because they were they were improper it's but the foreclosure was for two reasons ultimately one was the failure to had insurance in place on the property which resulted in a force placing an insurance a premium payment and the the failure to pay for that thank you and first i'd like to let the court know they're the attorneys that filed the initial lawsuit for me was not the attorney that was handling my bankruptcy there's many many months before i could find someone to take the this case so therefore the attorneys the attorneys that file file after the foreclosure they knew nothing about they knew nothing about me or anything that got there had gone on prior to me contacting them mr marsett said i think this is this comes from their answer it says in that brief trust mark again ledge that die start was in default on the loan for failure to reimburse trustmark for insurance premiums which trustmark paid plus taxes and interest plus interest and cost well they said it again a failure to immediately reimburse peoples which was trust mark is a default under the mortgage and entitles people's bank to accelerate all songs and foreclosed upon the property but that is not true because what the what the mortgage says is if the lender places force place insurance on the property then the premium goes into the loan and the borrow is borrower is charged interest on there so that was that that you know that's a disagreement right there  one other thing i don't know we've i don't think we brought it up but mr maher said it was saying there i was given notices even the district court said i was given four different notices and plus something else but all of this happened while the while the automatic stay was in place and and out of this court it says indirect collection actions including collection ition initiated through legal proceedings there against the the automatic say they can't do there the only in everywhere i've looked the more a motion is a notice to the court even if they even if they said even if they could prove that those notices to me were in fact notices they were they were illegal because they were attempting money while the stay was was in effect so i don't i don't see how they can say that i was noticed i found out about the foreclosure when someone called me the day of the foreclosure i don't know about those conversations i have i have put it in affidavits i don't know about those conversations that went on between my bankruptcy attorney and trust mark i found out about them in the pleading