may please the court my name is right how i represent the plaintiff appellant in this case the district court erred as a matter of law i failing to follow supreme court precedent and by i'm so going to feed back i'll just continue failing to follow the supreme court precedent and by making a determination of the real estate side of the procedures act that was incorrect this court interpreted a provision of service and to mean that there would be two servicers at the same time alleged that servicing had transferred on november st two thousand and seventeen from freedom mortgage from side from n y c b to freedom mortgage nonetheless the district court held that n y c b would be his service or for the narrow purpose record complete relief among the existing parties under nineteen a one a and of course the answer is yes if carol wins against freedom freedom will compensate her completely if her loses hell has a soon other party i suspect a when it was not really what the court was going after here really meat of this issue is nine hundred and eighty one the that person must claim an interest relating to the subject of the action and be so situated the disposing of the action in the person's absence affect one of the two following for visions now if this provision the person claiming an interest is to have any force and effect and this court hasn't specifically held that a party a a putative required party must make an affirmative claim but if there is any situation where a person has to make an actual claim a a an affirmative act this would be the situation we know that and why c b as a sophisticated party they know about this case we have physical documentation that shows they know they are aware this case is going on they know that it affects them yet they have made no effort whatsoever but counsel understand that argument is just inconsistent with a lot of supreme court precedent assume just for a nd that argument that you require an affirmative statement affirmative plain lot of potential priority is for a closed by a number of supreme court cases to tell me the next argument i don't want you to c b under the statute or hell succeeds in this case recovers from freedom and freedom then exercise its indemnification clause under contract and recovers from and i c b as a matter of contract as a practical matter it doesn't make any difference to n y c b they are indifferent employer indifference is shown by the fact that they made no effort whatsoever to inject themselves in the case neither party even though the plaintiff and a defendant both agree that n y c b could be joined or not attempted to join them and obligations because of the interest already explained that the interest is small to negligent if not if nothing and to for an absent party to leave an existing party subject to a substantial risk their presence would have to actually do prevail they really have nothing that is that right that's correct generous especially in that situation right so considering that they are are not required we'll just look at what did the district court actually determine in this case they determined as a matter of law that it would be a crime and for there to be two services two services at the same time that that the service or there was a violation of sixty five this feedback was killing me but under six g the service or shall i make payments from the escrow account for such taxes in a timely manner as such payments become do so clearly the service or as an obligation under statute who is the service or the district court look at the definition of service or service or is a defined term a service or is a person responsible for servicing of a loan now that might have been enough also a defined term in relevant part of servicing is receiving and he schedule periodic payments and making payments with respect to the amounts received from the bar and that bottom section that's in the court interpreted to require to be two services here's exactly how it did that the court said that harrell had made all the payments from which his property tax payment would be made before october st all those monies had come to n y c be for that purpose for that reason n y c was the responsible party because it was responsible for making payments with respect to the amounts received from the borrower now interpreted the provision of law to come to that conclusion here's why that's so important here's what it means i think the easiest way to understand this is a follow the money eric made a series of schedule periodic payments to n y c and i said he received those schedule periodic payments and obligation attached at the time it received those schedule periodic payments and stayed with n y c this is the this is what the district court is thinking  he puts the money into the us from account it then transfers that money to freedom event transfers the escrow account with the monies to freedom now what is freedom responsible for under the district court's interpretations freedom is responsible for making payments  court says and i see b is still responsible as a matter of law there's this continuing residual responsibility that exists from n y c b this is inconsistent with respa and making that interpretation making that interpretation just recorded that without consideration of proper supreme court precedent robinson vs shell oil company makes very clear that we are to when we interpret a provision of law a disputed provision statute we must look at the the language itself the specific context which the terms are used and in the broader context of the statute all context of the statue fights against this idea that there could be true service or set the same time if we do a a robinson compliance interpretation and something different let's start by looking at the the plain terms and consider this look at the statutory a context is required before we can even determine whether that provision is plain for a big us so context must be looked at in every situation so let's look at the plain terms with respect to the amounts received from the borrower and understand again the district court understood that to mean those specific schedule periodic payments only that come directly from the borrower that's not the plain language amounts received from the bar means all amounts received from the buyer that's the natural reading now does that reading comport with the specific context of of the definition of service and the answer is yes because in servicing receiving schedule periodic payments that's different from making payments with respect to amounts received amounts received schedule panic payments these are two separate words meaning two different things so if we read amounts received from the bar to mean all amounts then we have read it to be something different we're reading it consistently now there's we also need to look at the broader context and this is important if we look at six g how does that interpretation with respect to the mass receive that means all amounts how does that line up a section six g there's a lot in sixty that leads us to the conclusion there can only be one serv make payments from the escrow account for such taxes in a timely manner as such payments become do so we can see section sixty seems to align the party that is responsible for putting money into the escrow account for the party that takes money out of the us was not the same party and then it links further it links to the party making payments as such payments become do this is all the same party and that interpretation that what what six g b drives the sixty driver that's consistent with the interpretation of with respect to the amounts received from the bar that means all amounts and if we look back it's even more important than that because when we look at the middle partially here of section sixty the service or shall make payments from the escrow account for such taxes as such payments become due as the th of november payments become due on november th this ties that party to the party presently who is presently the service or that service or shall i make payments from the escrow account if we agree with interpretation that is inconsistent with this phrase the service or has to make payments from the escrow account but not under the district court's interpretation because there are some monies in that escrow account that it is not responsible for that interpretation cannot stand and i'm sorry my video is frozen so i'm not sure how much time i have left but i just want to i think i'm probably ok thanks very much i just want to wrap up by saying all that the interpretations that support the idea that there is a need to be to servicers in fact not consistent with what the borrower understands this is a consumer protection statute it we it's important to stand what's the point of view of the borrower what does the borrower think the borrower got a letter from from n y c b saying servicing is transferred to freedom freedom said the same letter saying we are now doing your service in the bio understands there is only one service or that's consistent with section sixty with the purpose is to leave if you leave the confusion that is consistent with all the other interpretations of the statute that financial protection bureau the bureau's basic position in this case is that a transferee service or that acquires all rights to service case consumers mortgage loan and hold itself out to that consumer as his service there is a service are under arrest  with the responsibility under the statute to ensure timely payment of escrow account items such as the property taxes at issue here and for that reason we think the district courts contrary holding should be reversed i want to point the court in particular to two provisions of section six first there's the definition of service or as the entity responsible for servicing now we don't rely solely on this provision but it's notable and certainly consistent with common usage and common sense that the company that owns the master servicing rights has alternate control over how servicing of a consumer's loan is going to be carried out would also have a responsibility to ensure the proper servicing of that loan under the statute also want to point the court to another part of section six this is twenty six o five c the hello letter requirement which requires new service or to send consumers a letter around the time of the transfer setting out certain basic information  including the the identity of the new service or the effective date of the transfer or where they can direct any questions about the service and transfer we think be a really implausible reading of the statute that the word service or in tw refer to something wholly different from the word service or in twenty six dollars or five g which requires a service or to make timely payment of escrow account items far more sensible to read these provisions together so that the company that is required by law to tell the consumer we are your new service or also has a responsibility as a service or to insure payment of these items and particularly in the context of a consumer protection statute which was meant to help clarify for consumers what's going on during these transactions which of course consumers are not themselves initiating they don't choose to have a new service or congress that you know recently determined that they needed more information about  what was what was going on when these rights are transferred the district court erred in relying instead on the definition of servicing that definition is a general description of what servicing is but it doesn't necessarily control who is responsible for servicing and it doesn't require that the entity that receives monies from a consumer must be the one dollar to pay them out or they would have sole responsibility for paying them out later that interpretation would conflict with the rest of section six consumer is current on their loan the servicers responsible for paying this money even if there's not enough in the scrip count so under the law not only does it not matter when consumers are paid particular monies into an escrow account to some extent it doesn't even matter whether they paid in enough servicer is responsible for taking care of these obligations and then the rake sets out a process by which the service or can recoup that shortfall from the consumer in a lump sum or or installments i also wanted to address three dems somewhat different argument that they made in the district court which what it's another do with the definition of servicing he basically said just look to the contract and who had responsibility under the contract that's the sole service or that interpretation we strongly urge the court not to endorse that view which is really completely contradictory of the statutory scheme here because it would mean that for a consumer to identify hold accountable their service or for service in fails they would have to servicing failure succeeded they would have to unmask the true service or by you know defining the existence of these side agreements to which can't force consumers yes council on that point as i read the loan agreement here it doesn't require anyone to make payments tax payments out of the escrow account it simply refers to rest from it so i  guess i'm i don't understand that argument perhaps because the the statue of the the loan agreement doesn't require any service or to make tax payments it just references rest but they must do what rest merely refers to rest but there's no reason alone obligation to make tax payments there's only a loan obligation to make escrow payment the you are correct that the loan agreement does require the borrower to make payments into escrow for specified items including property taxes two thousand six hundred and five g says that where a federally related mortgage loan that in your understanding it is a it's a statutory obligation yes that is triggered by the fact that mr harold was required to pay into escrow for for these amounts  parties and i'll give the court the docket number if the court doesn't mind me going slightly off the record into the public record because it directly answers this court question and that docket number is eighteen dash one th four and in that case after the district court entered its original decision recommending dismissal before the reconsideration motion the judge in chittick put in place on the parties motion and there it was freedom to motion a stay saying that you know the carroll case will be heading to the th circuit the th circuit will be deciding this issue but here's what's most telling after the court had the reconsideration motion before it not only did freedom move for a stay because i understand the court's concerns here when it comes to the necessary party and rule nineteen issue very well may be the interests of n y c be n y c be affirmatively moved for a stay in chittick again a case same type putative class against both n y c b and freedom in that case and docket number thirty six in that case actually thirty five it's the motion thirty six is the memorandum freed n y c b moves st day and a dog the reasoning set forth in freedom's motion and it notes that the court had previously stated the matter based a finding that the court's ruling in harrell meaning this court's ruling in harrell may be dispositive or some of the or all of the some or all of the issues presented in this appeal and  district court did stay the chittick action on that basis so here we have a circumstance where we don't have to get into your honor or whether or not and why c b raised its hand and made a claim to an interest and white b did affirmatively speak and say fully recognizing that this court's decision in this appeal would impact the question of who is the servicer with respect to the november th tax payment and said that's fine with them so if it gives the court there any comfort and again i don't use the word comfort lightly that the considerations that are at play in a rule nineteen inquiry and that is possible impacts on and on party that is n y c b and y c b has stated its piece when it comes to this issue arise under the con tract that is the loan agreement or does it arise under respa so the obligation of the service are to make tax payments is that a contractual obligation or is that a statutory obligation your honor i think i need to say with our research and specific question and i think it's a good one i think we might say it a right is out of bone i mean plainly there is a contractual relationship off guard you can just say i don't know that's totally fine but as i read the the loan agreement it requires contractually the borrower to make payments into escrow but it does not require the service or to make payments from the escrow the payments from escrow are referred to as the respa obligations so that's a statutory not contractual and did just sort of give the reason why this matters under the servicing definition that the making of payments under eye three only applies to those that are required pursuant to the terms of the loan and so if the payments aren't required to be made by the terms of the loan but instead by statute that that provision would seem to apply do you follow that  am following that that your honor and i would have to and i as an appellate lawyer i am always going to be very candid with the appellate court i have never looked at it quite that way and i think right now the best that i can say i wish i had a more satisfactory answer to the question just one that more directly answers the question but but i think that we've got to look both to the contract and the statute and if the court would like the parties to speak on that issue none of them right we certainly will do  found and in particular you know we have a very narrow question and in this case against whom does the cause of action lie with respect to the nov th payment under the circumstances of this case and as my friend mr harrell pointed out and i wanted to know when he was talking he said you know when n y c b gets the money again looking at the statutory language receiving any scheduled periodic payment from the borrower he said an obligation a rice it and then that very same provision talked about paying those amounts received from the borrower i don't see a distinction as mr harrell does there isn't one b seeing receiving schedule payments and then amounts received from the borrower what you receive from the borrower are the periodic scheduled payments and then it says that those payments must be made the amounts due must be paid from the amounts received in escrow and in this case we have circumstances where the amounts that were escrowed for the real estate tax payments were made to n y c b and these are allegations in the complaint not facts outside the complaint and as mr harrell also  alleges at all relevant times including on no october st november st november nd november rd all monies needed to pay the november tax bill which everyone knew needed to be paid on or before november th had been paid under those circumstances and why c b has the obligation to make that tax payment we are not advocating a circumstance your honor where there's two dollars servicers for all these really so is there any case little support for this sort of split responsibility notion your honor  looked and looked and have tasked other folks with looking this is one of those circumstances where i'm not able to stand in front of a court and point you to a specific decision that addresses this question i think as you can see the reason why the parties i certainly on my end and perhaps on the other end as well are focusing so much on the statutory language because that's what we have and that may be all that we have here you know the the language of respa both in terms of the definition of service or and servicing as well as the provision on which mr harrell search his cause of g and as you know the district court again i want to come back to and the reason why i underscored under the circumstances of this case both mr harrell and the c f p be throughout their brief talk about  circumstances that do not relate to these facts and circumstances and there's nothing in the district court's opinion that would prevent the court from dealing with specific circumstances where it might make no sense to have point and therefore the acquiring service or and this case freedom acquired and since the latter saying hello i'm now your service or acquire the responsibility of as strongly indicating a contrary reading to the district board's view your honor i actually have flagged those pages and i read them somewhat differently and they are not at all inconsistent with the district court's ruling they talk about you know after this date freedom will be collecting your mortgage payments nothing else about your loan has changed it also  points out and tells the borrower or reminds the borrower presumably they knew who their prior service or was that n y c b is now don't elect in your payment then talked about what will happen going after the date in the hello under what i'm just having trouble understanding why that doesn't suggest to us that since you are the person responsible for both receiving and making as of november the nd that you were not the sole servicer at that juncture based on the context we're getting from the other provisions your honor i focused again on on the temporal point and the allegations in the complaint during the period of time that and why c b was the service or and why c b had collected all of the money this is not a circumstance where only part of the money for the real estate tax payment in november all of that had been collected and white c b was aware as the district court put it there was a then do and this is prior to november st then do tax bill knew that it needed to be paid on november th as a matter of fact paid the june payment on  june st as opposed to june th and it was the servicer who had the obligation to make that tax payment and this isn't a circumstance where the plaintiff is going to be left without a cause of action it is simply which service or needs to pay let me say up front before i make this point that i am not relying on the p a to define  party's obligations under the statute that's an entirely separate point but my friends from both mr harrell and the c f p b have raised provisions in the p a to support their arguments let me point out that the p a demonstrates that the servicers involved in this transaction understood what the rest provides in terms of obligations under the statute obligations under which and why c b would have the obligation to pay the november tap tax bill for which it already had the bill had all collected all of the monies in hand you saying that there are simultaneously two to use doing things that would fit within the definition of service or your honor that is correct when freedom became the sir so if you have to man these performing functions that fit the description service or don't you necessarily even have to say that the statute allows for more than one service or i believe it does your honor and it allows for more than one service or to the extent that n y c freedom became the service or and why see has service single obligations that it needs to fulfill with respect to the honor i'd have to say that that that that is that is correct because they're asking this servicer n y c b needs to finish the job for an already accrued ripened obligation that it and there is no harm to borrowers in these circumstances if we're not suggesting that the borrower doesn't have a cause of action against any service or i mean we're not arguing that the real estate taxes did not need to be paid but instead under these circumstances that is an obligation that falls on and y c be and the cause of action for the failure to pay those taxes by the end of the calendar year fall on and why c b your your colleague mentioned earlier in the context of the rule night scene inquiry that if the plaintiff recovers against freedom that freedom would have a claim under the p quoting verbatim i have to look down in my notes but the n y p a provides again and puts the obligation plainly on and why c b to do what i'm going to call are called in our briefs finish the job and that is to make tax payments that needed to be made or perhaps insurance premium payments out of the escrow funds it had collected from the borrower amounts received from the borrower and they have the obligation to do that for all that and again before we close and ask this court to affirm i emphasized at the beginning about under the circumstances of this case this is a case where the court concluded again looking at all of the facts pleaded in the complaint that concluding that freedom is not the service or for the purposes of the november th tax payment aligns with the statute instead n y c be needed to pay them money then someone under these circumstances and this is not contrary to the language of the statute and many of the what i'm going to call parade of horribles addressed in the brief are cases that are not like this one thank you i see my time is up thank you mr harrell you have three minutes in rebuttal ok so there's a lot going on here for that is distracting from the actual words that we need to look at the court needs to look at let's go back to the statute let's go back to six g the actual provision that her alleges freedom violated these service or shall make payments from the escrow account for such taxes insurance plans and other charges in a timely manner as such payments become do when to the payments become due november th two thousand and seventeen that is when the payments become do we heard freedom  mention that the payments were vendue this is not this case i think everybody in this court everybody here understands that there are situations where you may have received a bill i mean typically these come from doctors you're going to bill you open it up and it says payment is due on receipt and i personally get annoyed by these because this means i'm already late as i open the envelope it's doing receipt i'm already late that is not this bill this bill is due on of them or th two thousand and seventeen it was not then do the thousand and seventeen and we have the answer from him in its response brief said the following on page one thousand to be sure after the effective data transfer era was required to make payments to freedom for deposit into escrow and freedom was obligated to make payments out of  obligation to make tax payments from the escrow account does that arise under the loan agreement or does it arise under the statute the respa statutory your out of the security instrument specifically requires the borrower harel to make payments to the service or for the payment of taxes for putting into an escrow account for the payment of taxes now as to whether there is an actual directive in the security instrument to make the payment of taxes i think that's probably implied it certainly exists in the statute if it's not clear in the security instrument it's very clear in the in the in the statute that i would i would just say that these parade of horribles is real this is not just going to apply to a party that has paid one hundred percent of the payments to the prayer service or this is what happened to virtually every situation where there is a transfer every situation will be to servicers this cannot stand it is not compliant with respa is confusing to the bar is confusing to me as the bar i respect your request this court reject the district court's ruling reversed and find that freedom is bench and greet counsel even though we are at a distance consider yourself warmly greeted and we thank you for your able arguments particularly in the face of some technical