those misstatements cause them damage under the texas debt collection practices act and under texas come the judgment below should be reversed in the case for a mandate for further discovery summary judgment and trial there are three sort of so let me start with the notice of default everyone agrees in this case that wells fargo sent my client's notice of default in may two thousand and everyone also agrees that wells fargo sent a series of balance they we don't have to prove that there was some alternate consequence to our it's a misrepresentation and so what we're saying is we can point out at least two misrepresentations with respect to the notice  default and the notice of acceleration issues and those are causes of action under the debt collection right now wells fargo may have defenses to all that for example there's a good faith mistake defense in the debt collection practices act they can argue all kinds of things for example they could say on summary judgment we didn't get any damages from those six that's all fine but in terms of speeding it's will be six case we certainly reach that in terms of the debt collection practices act arguments because those are just misrepresentation are now moving on to end of the foreclosure foreclosure should've gone forward that's a slightly different argument that's a breach of fully accelerated and that is what this court held in burra in a slightly different context ok all of that to what consequence with respect to the breach of contract claim they shouldn't have been able the equity that we lost among the men the equity in the house that we lost because of the foreclosure we get damages for that under breach of contract and damages from the food closure that's what we're saying the damages the house act what he won't know your honor we want the difference between the market value of the house which was two hundred and fifty thousand dollars and the amount for which they sold the house in the st clip which is one hundred and fifty five so that is overarching really what we're looking for there is also a negligent misrepresentation in there that arises out of the same causes of action you know the same misrepresentations that we claim under the debt collection let me address the two arguments my friends on the other side make about that if i care st they say that the negligent misrepresentation claim fails and i think this is what the district court held up because it's not a business tort choosing the mortgages don't fall into the language of the negligence representation tort because  information was not provided to our client in the pursuit but there is no texas case that says anything like i have not been able to find one i don't think our friends on the other side have cited one and in fact many and it's a case where the court revived a negligent misrepresentation claim and a texas debt collection action in a some agent proceeding so i think this argument that somehow negligent misrepresentation applies only to i don't know exactly but commercial transactions other than mortgages doesn't make a lot of sense other texts the other argument my friends make is that the negligent misrepresentation claim is  valid under the economic law school and i think back to isn't correct the texas economic law school does not say that you can never have both a breach of contract action and  if you plead damages that are different then your piece of contract damages you can pursue both and that's exactly what we've done here for our negligent misrepresentation we have in addition to mental anguish for really specific why wouldn't those because of x you've said you know sort of operate on a parallel track or separate track oh where's the foreclosures the foreclosure and it's moving loma track without regard to whether you have these other cause of action you know in state court in litigating those and so have so i'm trying to figure out how the babil of the of those other claims you have you know of moves along so is this something unique in texas law where the foreclosure process itself is a moving along and it's track and if you don't do it over here you somehow moves the ability to just i'm saying i think i do your honor at the foreclosure here is long ago complete wells are go foreclosed on are on my client's house they sold it for much less than it was w right yes or so your argument to us is that although this is inappropriate photo of these six that i mean not your soul are going but when we strip through it is that what you're getting to you won't further line yes your honor that's the bottom line we've certainly created a claim under all these causes of action whether wells fargo will prevail eventually a trial or summary judgment we don't know we haven't gotten through all the discovery but in terms of a twelve b six motion to dismiss and i urge the court to look at the district judge his opinion here it's a couple pages long and it doesn't go through a kind of analysis that wells fargo doesn't brief or that we do in our brief it's a very of the misrepresentation provisions and the excess funds for asian and we have a claim under negligence representation and breach of contract at a minimum though we would urge you to also verse the fraud perhaps or others like that one somehow led your clients to believe that their debt was less than exhilarated amount or less than some other amount owed i don't think so your honor but i think it shakes out in a different part of the case i think that question shakes out in damages so maybe wells fargo will say in the next part of the case look you couldn't possibly believe any of that and therefore you know you don't get any damages  that's one way to shake out my view another way is well this is different but it's you know the bonafide mistake defense that will fargo might be great so i don't it's not a strict liability statute in that sense you know but in terms of our pleading we don't have to be that you know justifiable alliance that like we would have to be in a fraud claim or something like that it's just a misrepresentation claim and this court said that if you want to see that case where  i'm not sure any type of graphical error with respect to the amount necessarily would but as i say i think wells fargo would win that case they would just say you know we made a mistake and our systems normally catch them and there's no problem so this really doesn't cause wells fargo or an entity like wells fargo a lot of difficulty it really only comes up where there's a pretty significant misrepresentation here i do want to be clear if you look at these depositions that are in terms of waves a waiver can be expressed or it can be implied by congress contrary to the cold there is argument in this case the alleged abandonment of acceleration is by implication not express the coal bears or like schoolis of lee on the january th monthly statement to argue that there was the band and meant of acceleration but that statement makes no reference to the january interpretation of language in that statement and that's what makes this an abandonment by implication can you help me with one sentence that is on page three of the statement you were just referencing that i but it says failure to bring your loan current may result in dot dot dot the acceleration of your repayment terms so that sure sounds like it hasn't been accelerated i realize the january th letter says accelerated so that's my sort  of st sentence i have no idea why that would be in there i'm curious as to why i will certainly put it there but the one that i find even weirder is i'm looking on the st page of the statement and it says explanation of a mountain dew eight thousand two hundred and nine dollars and forty four cents due is not the exhilarated amount which makes it sound like it's not excel rated but i hear the word excel or even i think that means the total amount of the one do not a fraction of it well the january th statement says a number of different things it provides both the accelerated amount of the debt as of the date of this statement that's listed as one hundred and fifty two thousand and change it also provides a reinstatement which is you pointed out is eight thousand  clearly indicates that wells fargo did not intend to take down the sale that had been scheduled it provides that the whole excel rated amount of the debt is under fifty two thousand dollars and and that also indicates that the  in light of the language that you see on page one of this january th statement the language on page three does not unequivocally evidence that tend to abandon the schedule the acceleration that been noticed only five days before and i think it's also important to note that the that information that statement at the top of page three that you just on your own  is information that's required to be provided to borrowers under respirator lasix and we cite this in our brief one of the things that respa says you need to tell a borrower is a notification of possible responses foreclosures and expenses don't bring your own current and i think it's also important to know your honor that it says that if you don't bring a loan current it may be accelerated it's not like the language in florida that says it would be accelerated will will be accelerated which is language from the notice of salt and i'm sure how much them the main gets gets you because obviously the same you were just talking on the st page also says may the any scheduled sale may be affected it doesn't say that it will won't be affected in some of this may sort of conditional may language seems to run throughout the letter and the thing it's just confusing to me if i was the account holder and i get this in the mail is it says it may result in exhilaration and there's a table of the past payments about why that's there but in the next the next bolded sentence is most fargo has made the st notice or filing required by political law for the foreclosure process right so like i can't figure out if i'm the account holder one of them says foreclosure and started the other one says we may accelerate and so i guess i'm just confused as to why wells fargo would have the sentence in there i was thinking maybe it was some provision of state law i guess rest using rest of the rest for regular required i think that a lot of the language in this monthly statement is driven by their respirators and i think your question brings up another point that i haven't gotten to yet but that i think is very important here is that where as fair the waiver or the abandon acceleration because to abandon acceleration by conduct requires an unequivocal manifestation of intent to waive the acceleration and so where spirit was sent only five days after that the loan was accelerated exhilaration provide a restatement amount to the borrower is that required by state law or federal law supposes or is that just a business practice if two parties it honestly to negotiating a i'm in an to your question whether there is a state law requirement that says you must be able to reinstate after acceleration or after school closure process or see things have been instituted i don't believe there is a state law have the other claims you know for damages it said it said it so my question to you is the case on appeal to us is on a twelve b six the district courts reasons or where they are and so often we get to  back so all this can be untangled with soap for either in summary judgment or something else or all we in our quintessential twill be six year live year stating they failed to lead certain critical facts to keep many of their claims are premised on the argument that wells fargo abandoned acceleration bias cheney where he sixteen's monthly statement and we take the as a matter of law that january th monthly statement is not unequivocal it is as the cold bears call it in their brief and equivocal state if it is not unequivocal then it does not abandon acceleration by implication and so all of the claims that the cold is the lives that are based on the argument that wells fargo abandoned excel aeration sale as a matter of law let me go to extent or mt of a consumer debt or misrepresenting the consumer debt status in a judicial governmental proceeding in their reply brief the co chairs emphasized that wells fargo misrepresented the status of their debt  stating that the st notice d of the foreclosure process or that the debt had not been accelerated was a misrepresentation of the status of their debt that's their argument as i understand it but  misrepresentation concerning a could simmer debt status is only a viable claim if it's a misrepresentation of the debt status and the judicial or governmental proceeding and there was no deplored governmental proceeding in any relatives in this case consequently their argument that misrepresented the status of our debt is simply not a viable lame under section eight and stated in our brief we don't think misrepresentations about the foreclosure process either the foreclosure process is something that is not designed in state law there is no no settled meaning of what is the full closure process as a consequence if it's what different position about what the foreclosure process is but and i think judge stuart you started off with this the the coal bears were never misled about where they stood with their debt these of the wells fargo they were given a notice of assault that said if you don't you're you're to saul we're going to accelerate the debt and that's going to result in the sale of your property the monthly statements about which the pope is complain all an allegation won't do i think it's reasonable to infer that the bears were misled about where they stood with this debt and i think a vague statement about wells fargo's internal process about what the full closure process was simply records how much do you think was owed at the time of the foreclosure sale the the record shows the amount of principal that was it shows the amount i think there are escrow amounts and if you look at th statements as of the day as of january th it was one hundred and sixty two thousand dollars in change i don't think that in the record in this case there are there are reflected other amounts that i think logically that as well such as attorney's fees which are recoverable under the no that would have been incurred in connection with the school closure i think there are other full closure fees that are typically incurred in connection with these cases to conduct this will hurt her so i don't total amount we needed to pay was one hundred and forty four thousand dollars and they took one hundred and fifty five years and that is certainly a rule eight a allegation that i was in the changes us onto the deed of trust question  wells fargo says that in the deed of trust there is a right for the borrower to reinstate and therefore when they send a reinstatement amount in a post excel ration balance statement they haven't and wells fargo doesn't have that why not well it's because most of the time wells fargo is making the opposite arc that they have abandoned acceleration in order to save their statute of justice versus i think is wells fargo and those are both cases where of the banks are good we abandon acceleration by sending a post notice of acceleration balance statement that asks for less than the and the other side said oh but there's this reinstatement right in the deed of trust and these are form documents everyone uses i think close d to the same document and the court said no there is no non waverley in that reinstatement provision so did you ask me not withstanding your thought that it was ok the way it was but i mean did you ask to i'm in a fall in a minute pleading that more you know they fleshed out more you know what the court thought was missing or you just tore a rose and fell on the pleading is this no your honor we asked for an amendment to the complaint we didn't provide any you know proposed amendment in that motion but we're allowed to do that we asked the  misrepresentation about the characters that is an extent or amount and extent of the law don't it nineteen which is any other misrepresentation in the course of collecting all that and a two which is the excess you know you took and they attach witted what the minute pleading might say in order to stay in court and so you've answered my question that you know was not not done i'm trying to get to the meat of the coconut that this is a toil b six appeal you're asking t your briefing in your e mail we'll do our our best to untangle this exterior all right thank you