my high school debate coach bill madonna academy sister marilyn repeatedly gave me the same advice number one keep it simple and number two miss mckeever never assume anything for when you do you will make an ass out of you and me sister marilyn also has the distinction i mean lightning meter the fact that many english expletives or curse words are actually acronyms since i now have the dubious distinction of being married to my client an irish immigrant farmer my ears have over the years these cases have dragged on and filled with land acronyms which always end with the same rhetorical statement for jesus sake woman i may not be a lawyer but how can or a german bank be suing us when they didn't own our loan and how can mars have a mortgage when they admit they never own any loans sometimes things are so simple that even a husband can understand them although there are two cases before the court on appeal it is our position that resolution remained of the first case which is the quiet title against mortgage electronic registration system or mergers will resolve the second case the declarator action which was followed by a mortgage servicer g mac the kentucky case against mars is dictated by the black letter of k r s four eleven one two zero the statutes demands are simple and finite and the name defendant which is mars must either defend its lane or release the lane there is not a single case cited to support the district court's interpretation of kentucky's title statute namely  there is a third option found in the statute defend the lane release the lane or fence the lane to a third party the district court's order in mars argument is devoid of any kentucky law in fact neither the district left it to the district court's discretion i don't think it's anything that can overturn at this point will have in your opposing counsel the problem is th where we'd have to really address it as a cannot be way so you might you might want to proceed to address your honor i'm not prepared to address it matt provide a supplemental response because i didn't i left that in my reply brief to the district court's discretion because i didn't believe it was it was something that could be voided out at this point so may i address it with a supplemental brief i'm not prepared to address that issue i felt that it was within the district court's discretion to allow it to proceed we're just getting a repeat of the minute i can address one aspect of it the the quite title this mess a lot of it at this point could be refiled there's nothing to prevent under kentucky law from being entire arduous process over again so i don't i don't think that it's something that can be that has to be overturned regardless and like i said i'm not prepared to legally argue it today but we are we would have focusing on the quiet title case first and wanted to just point out to the court that if this is left unchecked the situation it will affect every state in the union's quite tight and basically got out quite title do not have the third option of transferring a deed or a lien to a third party once it's been filed now that's not to say that you couldn't under private property rights transfer a deed or a lien you're allowed to do but that doesn't make that transfer valid when we are discussing what was in the record at the time the quiet title is filed so the only options under kentucky law or to the lien is going to live and stay in the record or the lien is going to die and be removed from the record so just transferring it out of your name to the guy next door is a going to is not allowed under the statute to allow dismissal of quite a title if we do this we are on dangerous territory i live in the south and i also live partially in south carolina where there is a thing called heirs property and you can have multiple people going back generations and generations who think they have one heritage property with their cousins and what not and they file this is the only remedy they have to file quiet title to clean up the titles if you allow a person the you have four or five people in a deed allow them one of them who may or may not be legitimate to transfer it out and have to chase down the deed of the lien in perpetuity that completely defeats the purpose of the statute which is to decide what is in the record the day you file the quiet title is it valid that day i now address the second case which is the declaratory judgment which i feel that if the quiet title is remanded back to the district court for findings of fact this case will become moot because this is the case that's filed after the quiet title and you know that we've raised a ending in this case so this case will virtually disappear if the quiet title case is remanded back it's our position that george bank is the current plaintiffs in the second declaratory judgment case has continuously avoided dealing with the fact that it has never been a creditor and of the truth in lending act in regards to the loan rescission that took place in two thousand and eight which is the date of the recession deutsche bank didn't come on the scene until over a year later in two thousand and nine dortch bank has never disputed that its servicer or contractor could never be a creditor or proper tart party to a  case the supreme court in just an ascii vs countrywide has made it crystal clear that courts are not to make any more sanctions or creative interpretations in regards to the regulations that are related to recession under the truth in lending a judicata argument which was brought up during the appeals process it's not in the orders the district orders themselves they just deal with the law the case five ten was filed after five a party that that took an assignment of mortgage and put it into the record and a year and a half later that's actually brought it brought it up that five ten somehow applies to them and they've made a pretty argument even they have admitted they're not a party to five ten they're trying to argue that they're in privity with with their own service or which we have briefed in our reply brief in detail why they can never be in privity because they're the federal government prevents them to be in privity as a mortgage service  so they even admitted that the party isn't the same the issues of fact aren't the same as judge actually judge coffin this is back in front of david bunning but it was judge kaufman back then and she pointed out in five ten that i think in the last sentence of dealing with it that the issue of mers rescission who did hold the mortgage is not before her so she kind of went through the litany of why which we say is a bad law she you know went was going aussie but she also says in the last sentence i'm not really having to deal with this anyway because the issue of precision against mars is not before me on the t l a case the five ten is a damage claim against the service or which we found out which is that they'd are liable because they're not pretty they're not part of that whole gang and against the mortgage holder for damages so what happened was we filed the quiet title to enforce the recession and there's nothing in the teela that says that we have to in after just a nasty especially that we have to file anything but we did so we filed a quiet title which was the simplest way we knew of there's nothing that says we have to file declaratory judgment in federal court so by fi against the mortgage holder who is the only person we could get our hands on remember during all of the securitization we had no idea no one would tell us who supported lee held the paper on the house so we have no idea who's claiming who the check goes to are so you've got mars is the only person you can get your hands on because they're in the public record as holding your mortgage so by following a quiet title that would determine whether or not the rescission was valid and whether or not there lien was valid regardless of the rescission were killing two birds with one stone because we don't think that their their mortgage whether we were soon or not was never valid because they never held the paper and they by their own admittance can't hold paper they don't they don't own loans required for klein preclusion and there's a pretty good argument there there's a closer significant relationship between dortch and a clause or significant relationship that exists there it's not doesn't have anything to do not with whether daughter came on the scene at any given i don't think there is a relation at all there's a damage claim against a mortgage servicer in the mortgage  and when you re send your loan we're going back to the date of two thousand and eight when it was rescinded who the players were in two thousand and eight and now the district court has not ruled on whether or not the the loan was rescinded validly against whoever was holding the mortgage doesn't look at who did what when it looks at the relationship between the parties that it looks to what was litigated in the park there's no relationship between a mortgage servicer like the federal government has made sure there is and we are your honor i'm taking ten minutes i don't know if i'll take all ten minutes but i'm taking ten minutes to discuss the zero eight four five nine case against this do what you bank judgment and mr kellerman's taking five minutes to discuss the four five six please the court i think your honor has the issue squarely before the court and that is that in the multiple cases that are not on appeal prior judgments have were entered our orders were entered that were relied on by the court in four five nine to entering judgment in favor of deutsche bank on its claim for declaratory judgment that appellant rescission attempt was not valid we're here today on an abuse of discretion standard application of the law the cases is to be reviewed for abuse of discretion and it is clear based on the record that the court in four five nine did not abuse its discretion in looking back to its prior orders in five one zero and in zero nine three six two appellants try to characterize their claims in five one zero as merely being damages claims and did not involve rescission claims well that's just it's just not true and it's belied by the complaint throughout their complaint in zero eight four five one zero which include teal rescission claims as well as a dozen other causes of action but they specifically allege that the homeowner seeker remedy under t allowed to obtain recognition they homeowners assert additional and separate claims for violations of the teal and rest but pertaining to loan rescission the note in mortgage were defacto illegally rescinded und teela and on and on and on and on and they seek the remedy of having the court declare that their mortgage and their note had been rescinded under teela and were now known void those are the allegations set forth in the case oh wait five one zero judge forster on september fourth two thousand and nine granted g m a sees motion to dismiss that case and found facts to maintain the right of rescission under oh i want to note also that no part of the court's decision in zero eight five one zero dealt with the statue of limitations so the issue in just an ascii was whether or not the sat statue limitations was satisfied when when a borrower sends notice to the creditor of rescission within the statute of limitations but doesn't file this lawsuit until after the statute has run and what justice scalia in jazz an ask he said was sending the notice is in compliance with the statue limitations and that's the date by which we what is the theory that you can use because one would you agree that law of the case is problematic because these are not in fact separate cases consolidation is not enough to get you into law that we have and it's really that the death knell to a balance argument is that oh wait five one zero has now become a final judgment that became a final judgment in two thousand and ten the appeal of that final judgement and all the and the orders in that case was dismissed and so that is now final and unappealable and as i laid out in the brief there they have they specifically asserted rescission in privity if the court looks at their allegations and that in the complaint no that complaint establishes that it is i mean she may previously have alleged something different from what he argues today but i don't know that a complaint ever proves anything no your honor it may not prove anything but i think that might be the word you it certainly may be but her complaint is instructive because she names g c as a party defendant in its individual capacity and as the servicing agent for the holder in due course of the no ok so she's suing them both individually and as is the servicing that they are in privity is demonstrated by the fact that g m a c was the service or which is not disputed deutsche bank is the holder the court has found throughout all of the consolidated cases below that do it your bank is the holder in due course and the court's decision in zero eight five one zero stating that they did not have a valid rescission claim is a judgment on the merits it is final it cause of action are identical it arises out of the same series of five one zero is based on the six circuit case law and the other case law is very clear that you can't go back and revisit the underlying home clear on claim preclusion for that i don't think it's very clear on issue preclusion i think that's right your honor and i'm further supported in my argument not only by the final judgment and five one zero but also the final judgment in eleven dash one eighty eight and eleven dash one eight that judgment became final and appellants did not appeal that judgement dismissing their claims and rescue to caught up lies there is well because even though the claims were narrower in eleven one  one quick point before i sit down though you know the issue of standing i think is resolved by the substitution of deutsche bank in place of g m a c in the deck action  rule seventeen a three provides that if the real party in interest is not before the court the court's not to dismiss that case until there is an opportunity for the real party of interest to come in motion for substitution was filed motion for substitution was granted bringing deutsche bank as the holder substituting them in place of g m ac in four five nine and in rule seventeen a three further provides that  after substitution the action proceeds as if it has been originally commenced by the real party in interest and so once the substitution is made it and the action commenced as if to which a bank was was the plaintiff from the beginning and then final judgment was rendered after the substitution oh thank you thank you good morning i'm david kellermann ever present mortgage electronic registration systems mars was the defendant in the underlying quiet title action it was not a party to the other action and so i won't address the all wasn't the closing no communication between mars and appellant so with that in mind i'd like to give you three reasons why the district court case decision should stand the first your honor just quote you picked up on is the jurisdictional issue that the appeal on the quiet title action was not filed timely knows of appeal was filed in august of two thousand and ten and the district court's last denial of appellant motions for reconsider was jurisdictional requirements in their brief was a so was one sentence the appeal is from an order and final judgment disposing of all claims without trial in two cases where an italian notice of appeal was filed and we argue your honor this is not true in that the case can be that the district court was correct then because mars no longer had an interest in the property if the time of the judgment there was no interest to quiet so getting back to our chronology  the mortgage in may of zero seven the quiet title action was filed in october of zero nine excuse me october of zero eight in september of zero nine merced transferred the mortgage to do which bank so at the time of the court's judgment in march of two thousand and ten mers no longer had an interest in the property to tie it to no no no longer had a interest in the property to quiet and that's why the judge that's why the court the the backup reason to that your honor is even if murtha retained an interest in the property to title the property to quiet the district court found that plaintiff's complaint failed to state a claim of any wrongful conduct against mars the quiet title is you know you can't you've got to have some reason to quiet title there's got to be some wrongdoing on behalf of merced to get a judgment against him in a quiet title case it found that the quiet title action against mars regardless of whether to an interest in the proper you're not failed to state a claim of any wrongful conduct against mars so for that reason among others the district court dismissed a palace quiet title action and we would argue your honor in conclusion that that decision was correct in that this is and should be affirmed thank you i'd like to address mr thorson's arguments first on the on the issue of standing which i'm glad judge clay had brought up since we didn't get to speak about it earlier in order to get to whether or not the summary judgment was appropriate the court is going to have to deal with the fact that we had our judgment on the pleadings based on standing so so if you have any questions to that i'd be happy to answer them is not in the record i challenge him to pull that up a holder in due course i mean something entirely different the actual paper for this loan has never been produced we we did not have discovery but it's my understanding that it doesn't even exist not only the forgery is one issue but even if the paper was produced and we called it a forgery the paper needs to be produced in order to even pay off the loan so if we were to write a check today who would we write it to who would collect this money and they would have to return the note in the old days before you securitize and they took away the glass steagall act when you paid off your loan you got your note back there is no note in this case or  what i'm saying if we did we have had negotiations to talk about it and actually there's a number of things we did tender payment after rescission if you look at the record we tendered payment after the rescission was made even though the till tinder it's a tender offer and that's what it says you have to do after they remove the lein we did it before they were meddling we had we had the second we had another loan lined up at the time remember when this was rescinded the loan was current this is not a situation where people were foreclosed upon and then rescinded their loan it was done it was done proactively and so if you go back through the record the tender offer was made and they rejected it and then they filed the declaratory judgment a service or did so and we would like to reiterate on standing that if you don't have standing as the original party it's impossible to have standing as a substitute party so in two thousand and eight when g mac who did not have standing to file this georgia bank was not on the scene i hope that you all keep that in mind that when all of this took place the main party that's here today on that mr thorson represents didn't even exist for any of us we had no idea who they were we couldn't have included them in a lawsuit in two thousand and eight because they weren't around yet i mean by the time they came around things were in full motion and the only person holding the mortgage that you could get your hands on was mars that's the only party we sat on a rescission letter to g mac the service or in mars the mortgage holder and bank of the bluegrass who was actually the table funder they didn't actually lend the money that was ally bank or g m at bank but but bank of the blew it we set out three different letters because we didn't know who the paper who was holding the paper and i want to yes yes your honor i also want to point out that we did try to reopen five ten just on this very narrow issue to have just an ascii applied to this vacate that paragraph so even though mr thor's argues that it's final the case may be final but that paragraph is currently under a rule sixty motion and that was done by back in october i was hoping that the decision would be out before we had oral argument but it's not so i want to point that out as well that if if judge bunning vacates that paragraph it will change the it's an entire game changer so i would also ask the court to possibly