in talking to him he suggested you go so i just tell you that that's where the idea came from i intended to go after them because i've been successful here true your allegations here that event kept safe countrywide kept saying to her keep applying don't worry you're in good shape and then eventually he said no you're not what you're damn which is a single woman running a business and i'm sure if you dealing with bank of america which told her that they were helping her and they were working on it and everything was going to be perfectly wonderful she was not given negative warnings she was and so is this a lost profits case from her business or is it is it out of blatant threat i guess i would call it's out there they still could do it i have a number of clients who are in that position anything and we get anywhere near this like bank of america they go into a you join any foreclosure yes she's under threat they're not actively pursuing foreclosure at the moment have a foreclosure for quite a while but it's out there and she can't do anything with her property  and what's the and what's the basis for an injunction that would prevent foreclosure well if one accepts what i believe to be true that bank of america is essentially so you are the victim of you that activity then you should be able to get a junction to prevent that from the injunction would be the injunction against further deceptive practices so they should stop calling her and telling her that if you don't pay if you don't pay the loan sooner or later you get foreclosed on so it seems to me she'd only have one of two arguments one is that we should enter into a loan modification or two on pain those are the only two arguments i think that can stop foreclosure are you arguing that she's ready willing and able to enter into a loan modification are going absolutely and that's the other side had it effect told her they were too but won't do it so that the bank and said well we're ready to enter into one too told by bank of america that they wanted to have a mediation session and meet with the chief mediator for the night circuit because we'd already talked to her and they wanted to go forward with that and they wanted to do it at the time of the and so we said sure so this was about two months before the date that the event goes on and we went to great lengths to get everything together organizing why did everything she could we did many things  to the only way to avoid foreclosure it seems to me is to either have an agreement that says you can pay a different schedule which would be a loan modification or pay and you're trying to get an injunction from the it seems to me that if you are the victim of what is it wedging at this point by now is criminal activity that you are entitled to an injunction to prevent the criminal activity from going forward you exact yeah but if i were would you accept that as you have the best legal ok i don't know what how the question is does your complaint really allege that they agreed to the deal or just that they kept jerking around to use a legal  done for the last six seven years is low speed trade i think we've discovered they can make a lot more money by grabbing hold of these properties not pushing people to leave the property i have many clients bank of america who are living in million dollar how the try to get a modification for four or five years the bank promised them more and they don't care they're just they're just sitting there they don't want money it's an investment bank of america good morning your honour's my name is dennis my i represent be a seat which is a long service here in this case i would like to if i could try to focus my argument after any questions you might have the complaint to say that we just called the bank because servicer that she was told that she had a loan modification and she spent a bunch of time and effort pursuing that and if they there after a claim that the district court rejected because there was no allegation of fact plausibly showing a breach why because the judge said you try to allege that you allege that there november two thousand and nine but that mr compton in her allegations never alleged that she performed and indeed as a district court read the complaint and as we read the complaint miss content by her silence as sensually allege that she didn't perform because part of the loan modification agreement was to start making payments again as of the first new york nov and this is did not allege that she performed under that agreement this breach of contract claim that's not on appeal here is it no it is not that was a choice that counsel made and that's  going title to damages because they never really intended to enter into a modification and they put me through a lot of expense and effort and i spent a lot of money pursuing a modification if you decide never intended to enter into i'm not fall short deceptive act it has two other elements as the courts where one of those elements is injury caused by the violation looking at his competence complaint the allegations as the district court did there was no there was not sufficient allegation of injury why because from this company's own cool point she alleges that how did she get herself in this position of being under threat of foreclosure one as we all recognize as something beyond her control all of our control even though i think beyond the bank of america's control we have a half a terrible financial crisis of two thousand  generally about the financial crisis and beliefs about how banking system works but in this case as she admitted she there was a financial crisis in two thousand and nine pool business of foreclosure it's our position what put her in that position was the downturn her choice not to tap into her income to pay the extra thousand dollars a month for this or residential property not  that thousand dollars a month and the ultimate the last decision was not true pay on the loan modification that she alleges was in effect and you're right you're on if you're right that district court drew the conclusion that by failing to allege by failing to allege that she complied with the terms of the contract perhaps that is too harsh to miss compton to say that is  alleged was she experienced considerable hardship we know under hawaii law that you don't claim you have to will allege an amount of damages something other than in the clouds and physical injury or property injury we know that that's the element now of course you have to prove it in your complaint but if you simply said i suffered some kind of harm i think what a judge would do in state court in federal court would say you know  ff you don't have to allege exactly to the penny or to the dollars the tens of dollars how much she suffered but you know plaintiff if you don't allege physical injury ok can i interrupt what if she says reading that narrative has to know that there was some expense to doing those things why is that not something from which we can infer that the merry dance that she was led the one reason i'm not aware of it is because the claims that we're talking about now are the elements rather the injury element and the amount of damages our amends are not issues that were brief because they were not issues presented by appellant so i'm in the position now can i tell you that no but i can tell you that that is now how that pellant notice how compelling chose to litigate it and therefore not that how we focused found no duty we say that is appellant scuse me say there is a duty and put in argument again as your honor snow for nine more concise whether there is indeed a duty on the part of service or we respond to say there is no such duty and we gave our reasons why does that not just in a claim and then if i could and i'm not being snide but then if i say and assume that the allegation she makes are enough to at least to support a plausible showing of the amount of damages or some non trivial amount would that not be enough to state a claim and the answer would be yes of course it would be because i've just that shows that there was ever any real intention to give her there's no record all we have a complaint is that there's nothing in the complaint that supports the notion that they were trying to really give her a modification there's nothing that we allege there's nothing that happened that would suit any reasonable person to think that they were trying to help show your dad here you get quite here is that they put her through time and expense chasing a modification an injunction until the matter can be resolved bank of america has not been getting any had trouble showing hardship they have not made any effort to foreclose for a very very very very long time it would be hard for them to  say we asked for an injunction well no you can't get it because that would be a hardship for bank of america there's just been no showing whatsoever that they in fact particularly want to have