partner and we appreciate the opportunity to bring this matter to you this is a fairly complex situation and it deals with some new regulations i thought probably the best way to approach this would be to just cut through the chase and go right to twelve c f r ten twenty four point forty one because the main issue as i see it is a respite issue which is a right of appeal for a loan modification in other words under the regulations of this c f p b if a loan modification application is denied then the homeowner is entitle to appeal that that became affective january tenth two thousand and fourteen is there any evidence in the record that miss the circe the family sent a completed application to and two thousand and fourteen as opposed to the north texas housing coalition or is it your position that singing it to the north texas housing coalition is the same thing as soon going to see him ah well i don't believe it's the same thing now the evidence in the record is four letters from c m on the january ninth two thousand and fourteen letter i'll give you the the the record page numbers for each of these aren't january ninth two amount confirms that they received the documents for the application for a loan modification and that if anything is missing we will advise you so presumably nothing was missing because they were never advised that anything was missing until a march third letter but we're not there yet now why is that important well because the regulations and i'll refer you to and to the section  a application considered complete because you see this language in their complete application well it's presumed to be facially complete unless the lender notifies you that documents are missing and if you look at the letters again you were only twenty two thousand and fourteen which is page ten sixteen it doesn't say that anything is missing so is it your january is the answer to my question the january twenty eighth two thousand and fourteen letter is some evidence that the complete application to see him i was submitted  january tenth direct that's your that's that's the answer my question yes is there any other piece of evidence that supports i mean i know that i have a whole list of all the letters but think that is the most significant document but again february twenty fourth two thousand and fourteen which is on page ten nineteen of the record letter what's confusing is that i thought there was some argument that i'm february twenty fifth is when they submitted the complete up location well then that would be inconsistent with your argument that they had already submitted a complete one by june you were in twenty eighth of february twenty fourth the there's no question that additional documents were submitted in january twenty fourth or twenty fifth but  that the lender will want will want more documentation as they go but it doesn't mean that the initial application was not considered facially complete in january the twenty eighth of two thousand and fourteen because and you know and i forgot to give you the section numbers that that defined facially complete if you go to twelve see a fourteen twenty four point forty one and then go to be to be that capital b and c to have those explain  the fact that if a lender does not say in their letter you know january twenty eighth that we need additional documentation then it's presumed that it's facially complete application i don't see any evidence is says they submitted an application except back in two thousand and thirteen july and that's not a relevant time period so it seems like there's a gap well the we don't have those documents and but all we have is that the fact that at the letter they submitted something timely because even if you didn't have the a copy of the documents or a copy of the transmittal letter where did they even allege that they submitted one after january tenth well we don't have anything other than the letter itself that's all there is the letter from see that we got the documents now and even if we give you that they submitted application in january after the effective date of the law how is that ninety more than ninety days before the foreclosure which happened in march ok all right that is it's not that i mean the ninety day thing is out but i don't need we can just ignore the ninety day requirement i don't need it your honor if you look at in this is where i was going to go i'd like to address exactly what the regulations say as it's the first of all the twelve c a fourteen twenty four point forty one now if you don't have it in front of you i have the the page number the record it's on page thirteen of of our brief it's also on page nine fifty three of the record i'm sorry h one largest service thieves a complete loss mitigation application ninety days or more before foreclosure sale and during that period set forth in paragraph at the service of primitive fire and to appeal is that what you're talking about i am your honor it's state it's  part after or after the word or that's what's significant for us that's what gets us where we need to get to show me how you get into it under an hour all right here we go all right after or it says of twelve c f r ten twenty four point forty one and it says application received before foreclosure referral and then it says if a bar worse emits a complete loss mitigation application during the pretty foreclosure review period set forth in paragraph if one of this section or now here we go or before a service or has made the first notice or filing required by a political law for any judicial or non judicial foreclosure process a service or shall not make the first notice or filing it could have been before there's an unfortunate gap in the facts and i understand that there are people who make an application and don't keep a conference for themselves i understand that the unfortunate thing is we are now left with  knowing whether you file this application and whether it was complete either before or after the regulation took effect so my question is are you essentially counting on a retroactive application of the regulation no i'm not i don't i think the case law says that it it's not rhetorical so it is for as the july application i think that's out i don't think but you concede you have to have a completed application after the effective date that's right i agree and i can you can you prove that that you had a complete application after that date or is it it really ambiguous well all i've got is the circumstantial evidence in inference because we got a letter january the ninth inviting alone magdy and then in january twenty eighth we get a letter from c m i saying thank you for the documents we'll process enough to get us there under the regulations if if c m as letter is to be believed so i think that gets us there now i know you want to talk about your other claim but when you come back on rebuttal can you us told us that it was the provision that well highs in your briefing because or if you told even the district court because i don't see that the district court went through that analysis and says you either meet that or didn't just the well is the ninety days and moves along and says that the court does say the nov of november twenty ninth two thousand and twelve it was more so maybe that's understood but i don't see you making this argument in the brief well it is the reference to arraf is in the we cited the the appeal process in other words we're hanging our hat on the fact that we were entitled to an appeal it's either we either have a good claim under arrest or if we don't frankly think that we do but even if we don't we have a debt collection claim because that the mark short of the letters that they sent and the march third letter also say this is an attempt to collect a debt now i agree with that at a t that the whole purpose for a loan modification is so they can get their money so they can collect that that's the whole purpose purpose of them of creation is to modify the terms of the debt in it which is different from saying the debt is d pay this amount paid by a certain date i fully agree with that but the ultimate goal is to collect the money and that's what they're trying to do that's the whole purpose for the loan modification so they can get their money and that's been  our i realize i understand i know the the thompson case i know the clarke case at the court has has your theory anything sent from a lender is going to be it's always the ultimate purpose sending the application to fill out to get a loan is with the ultimate goal is to get money down the road so it is broad short of a marketing brochure about loan financing could be sure but it but they say it in their letters  says that purpose is debt collection on its face on its face that's why isn't that at least a factor well i think it is and not only that the the the if say if i make a statement to this court i have to as i have to i'm accountable for that whatever i say they ought to be accountable for magic words and reverse the writing part of me on magic words and reverse the fact that the magic words were uttered when in fact it should have been uttered well i mean they can argue that and they always do but the fact the matter is there they say the purpose of this a letter is responded to it was sent in there it says that the the request had been denied because of it and it that was an error that's correct it says that they have thirty days to appeal  and no foreclosure would take place during the foreclosure and that was an error that's right and then it says in which is a big error that affected arguably affected the plaintiff's right i mean well i don't think it did  judgment on a claim where it says on its face that it's to collect a debt and there are noted errors in the letter i think for two reasons one i think the district court correctly elevated substance over form and just because it says it's an attempt to collect a debt doesn't mean that it is an attempt to collect it and it applied a animating purpose test which i think is a correct test i think it's a fair test that you have to look at the substance of the matter and determine what the animating purpose of the letter is is it animated the purpose of the letter to collect a debt i think the answer that question is no with respect to that mark stern letter there's nothing in it that says you know this amount you have to pay by this date if you don't pay and here's the that an appropriate analysis in light of our past case law that talks about these reasonable consumer in this situation is not necessarily sophisticated and relies upon these notices which this is a direct it's and it's a notice that was normally be required to be given it was attached in the back and that that's why they have these boilerplate notice i do actually because i think what we're talking about here is whether fits within the statute or not whether this is a letter that qualifies as a debt collection letter which i don't think really applies to what what what they would perceive once they received a letter as i think that's one of the relevant i think the the that the evidence of damages is there's zero evidence of damages and there's zero evidence that they were they suffered any damages as a result of that letter itself if you look at their arguments they say that they suffered four categories of damages one they lost title to the house two they claim damages from attorneys fees spent in a forcible detainer action three they say attorneys fees spent in this litigation and for mental angu years not for bobby seriously but for face or see if you look at each one of those and look at the evidence to the extent that they're even recoverable at all which the attorneys fees office are not there's no evidence that those are actual compensable damages and there's nothing that ties those damages to that march third letter take the title to the house for instance the last time of the house because they were in the fault and citi mortgage as the mortgage she had a contractual right to  foreclose and sell the property that's why they lost on the property and that's undisputed there's nothing that would have nothing that would have saved this property from foreclosure even if they had seen  letter if they suffered been a language which i don't think that they did but if they will have some evidence that they did i think that the evidence that they present then you know we we cite a number of cases in our briefing that says that's insufficient as a matter of law and we let him make a good evidence is kind of similar in it and we upheld that but but if you look at if you look at this evidence the only thing that they say is we suffered mental anguish is essentially it which is insufficient as a matter of law according to the supreme texas supreme court they mean that's really it they get they say nothing about the nature of the wish when i asked a direct questions what are your symptoms she can recall i asked her about the duration which is another element how long did it last she couldn't recall so do you think that's the cleanest way to deal with this claim is to say assuming argue in there that this is a done call action letter because it says on its face that it's no there is no damages alleged is that what you would want us to do i certainly think you can dispose but no causation i mean that the texas law says you have to link the damages to the alleged violation and there's absolutely no evidence that links any of those alleged damages to that march third letter and i asked for those questions were milling wish i was actually focusing directly on that marks to the letter i was asking specifically about it and she couldn't answer any of my questions and mr says he never even saw the letter and so we don't need to get into the complicated issue of whether or not even if it is a loan modification could it simultaneously be debt collection which has been left o what actually you know as i understand those cases what they've left open the door as i understand i could be wrong is that they've left open the door to the other part of the three hundred to three or four climbs which are index collection or up painting information concerning the consumer and as i wrote as i understand it they've left open the door that some of these letters could be act they're sent with the intent to take information concerning the consumer that's how i understand it but i agree with you that you if you don't want to address any of those issues you have a clear path and that clear path  and he cited for you the passage in that that says that before i think the who has to be before a service or has made a first notice we're filing required by political law for any judicial or non judicial foreclosure process well texas law the non judicial process is governed by section fifty one point zero zero two the texas property tax and the first notice that's required under section fifty one point zero zero two is under d subsection d which requires a notice of default an opportunity here that's the first notice required under texas law and on december third two thousand and twelve the evidence shows that citi mortgage sent a notice of default an opportunity to your letter and that's in the record at nine i'm sorry seven nine seven three seven nine eight so i think that answers that question i think the court was correct they met neither of the time frames ninety days before the foreclosure sale or the hundred twenty days delinquent and the july thirty first two thousand and thirteen application was submitted approved rejected by them closed out and referred to foreclosure counsel all before the effective date so if left with anything it's this january twenty eighth letter but that's all we have there's no corroborating evidence in fact and you know to be frank i don't think they said anything i asked her in a deposition did you send anything to citi mortgage after august twenty second twenty thirteen which was the date that we had set her in the trial period plan and she said i don't think so that's in a deposition testi i think what they've done is they've got this letter dated january twentieth two thousand and fourteen and they've crafted a story to say look here's in fact you should this keeps the door open this gives us something and so if you correctly noted no one says when it was submitted there's no evidence it was submitted after january tenth two thousand and fourteen and there's no evidence of what was they certainly could have explained what they submitted but all they say is they submitted a request for last minute insistence on the letter says thank you for sending us a request for loss mitigation assistance the very bottom of the letter explains it once you've provided us with a complete loss mitigation application we will review that we review it and all foreclosure activity will stop the affidavit from citi mortgage it corroborate was a complete loss mitigation application that would have triggered any obligation under subsection h one of the last negation proceed and unless there's any other questions i'll yield the rest of my time and and  on page nine twenty four from mr sears see where he talks about what his what he's gone through as a result of having to fight for his home this starts on line seven flow directly from this one letter that you claim as the misrepresentations that's all the debt collection about it's not yes right sure which naturally is going to have an adverse consequence when he talks about how it affected his blood pressure you know the fact one  letter where in the record is it tied to this letter i'm tom at the foreclosure itself you're out of how does that help you how does it i don't doubt for closure causes people but it's a tough situation a billion how does that help you on a claim that's based on one letter has false representations in connection with that collection well i think that's not the only one i think those three letters are either they either modify the period for appeal or the false misleading and misrepresentations and what have the state what evidence says those false statements as opposed to the foreclosure itself cause mental anguish or any other damages it's the well it's the represent the people that things represent something else you know that flag represents the united states that letter represented represent and it was the fact that we're talking about a foreclosure not the false statements but anyway i'm a client still in the house yes they are though they've been going on five plus years without having to pay to me in the mortgage with with the defendant paying their taxes and insurance so even if there are some conceivable damages out there one day be vastly offset  by the money your client i was for that free housing they possibly but not necessarily the they've had to pay us all during this period that we have represented them the mortgage company of course once they decide to foreclose they w except payments so they couldn't pay or they couldn't pay if they if they wanted to and they they do want to they want to keep their home so we're here fighting for the home this is a is a pretty good deal i mean most people out there would be thrilled to have a nice house free for five years that's not really free because they're paying the payment into our trust account so they're living there based on a payment into our trust account that keeps the who's paying the taxes and insurance over the last five or six years the owner of the property they chose that they chose that and here the way we handle these if we can get the mortgage if we could get this turned around we will take the  honor and put it on top of the loan so that's not due until the time of sale so that the payments can be affordable so the mortgage company can't act this way and get it somebody's home that's what this case is really about it's not about living there for free it's about what the mortgage company did and this is the sloppiest foreclosure i've ever seen with these letters ahead of time and you look at what's evidence of these  of them not having a full packet if you look at that january twenty eighth letter they say mr peacocke point this out if any of the documents  incomplete or we need additional documents we will send you a detailed letter specifying what is missing right that was january twenty eighth here the next letter is almost a month later when they've had plenty of time to look at the documents and they say basically the same thing this was their golden opportunity to tell mr ms certainty we don't have this document that document a detailed explanation of what documents we need they had a month to look at the documents in tell the services this is evidence that they had the documents as far as what us looking at this is a summary judgment case your honor and we're saying there are fact issues here that a jury could determine and under andersen versus liberal liberty lobby the idea of balancing in wayne credibility and all is up to the up to a jury not the trial judge so we're asking that it be remanded and that reversed and remanded sent back to the trial court for a jury trial