all right the threshold issue in this appeal is whether the record feldman doctrine properly applied to this case at all we have submitted supplemental thirty cases that come from the six circuit court circuit handling of the loan that resulted in the foreclosure and consistent with the supreme court's holding in exxon mobil the fourth circuit in vick's determined that the record feldman dismissed on that case was inappropriate and conflicts with our opinion in would submit that it does not conflict with post exxon mobil precedent because as the supreme court said at mobil de rigueur feldman doctrine does not apply simply because a party denies a conclusion that was reached in the state quit litigation if there is an independent federal issue then jurisdiction exists and according to the supreme court the issue is one of preclusion and in this case there was an independent issue and the issue was the mortgage servicers compliance with the real estate settlement procedures at and that is an issue that arose subsequent to the required and that's right that's correct but in the i mean i'm trying to figure out whether or not these issues could have been raised in the state court disc foreclosure proceedings did you have an opportunity to raise these the court via an affirmative defense or a counter claim or an answer he certainly could have raised as an affirmative defense whether or not the charges were correct  distinction in this court true that distinction in the renfro case there is a distinction between the opportunity to litigate the underlying error and he had that verses what happens when the rest for error resolution procedures received because in an acting recipe congress is aware of the great imbalance of resources and access to information between the mortgage service or and consumer and if the burden was placed on the borrower to prove defense of a servicing air that's a much heavier burden then simply invoking rest but notifying the service or that they believe there's a problem every choir in the service or to prove conduct a reasonable investigation and provide a response and explain if that word's determination why it determined that there was no where it wouldn't really been able to make that determination here and the fact that my client was unable to successfully persuade the state court of his contention doesn't change the fact that there's a material distinction between his rights as a litigant in the form in the state court foreclosure and as red as a protected consumer under arrest but i think you're making the argument now that this should not be considered in extra bully entered twined i have really hard time saying but that's your argument now correct ok and but i mean that is the eleventh circuit law intertwined and you believe they are not if you also believe that the amended complaint starts the time it gives us a new time for looking at for feldman yet we would make couldn't really find any case that basically decided this issue that is normally a judge jurisdiction from the time of filing the original complaint but you have rigor feldman a narrow doctrine that is in of federal jurisdiction and so you have an amended complaint which presumably you could file a whole new complaint and then record feldman wouldn't be an issue from that point if you exactly so that's something that i think would push one to interpret or to limit the doctrine on the other hand the general rule is time a filing of the complaint and you make the decision not to file a new complain i feel pushed by two different policies and with no answer and i guess the answer is how should one resolve this i think the court needs to look at the purpose of the record feldman doctrine and the purpose of the  to prevent litigants from resorting to federal court to seek review of state court judgments and to obtain redress of injuries caused by state court judgments and simply logically that cannot happen once a state court judgment is vacated as it was here and the case cited in our brief and of course preclusion is an entirely different issue but under florida law we found one case where it found the vacated judgment would have no collateral  effect because it was void so the purpose of the doctrine is to prevent you know of the federal court from exercising appellate jurisdiction over a st judgment when that judgment is vacate now granted and my client didn't and would quarrel with the factual findings in that judgment but exxon mobil says that's ok so it is not a question of whether the state court judgment will be upheld in on it once it's vacated there is some tension between the state courts judgement and my client's view of the facts but as at some mobile says that that question that tension must be analyzed under preclusion principle and not under record feldmann principles so given that the overarching purpose of the record feldman doctrine is limited it is a narrow doctrine and the concern is limited to the federal district co review once that judgment has been vacated it simply can't do that another exception to the record feldman doctrine is whether the federal plain it had an opportunity to li the federal claim in state court now we had an opportunity to litigate the underlying facts but as the six circuit points out in its recent marius versus chase on finance slip decision a respite claim and a foreclosure claim are flood insurance or you were wrong to buy this flood insurance for me because it wasn't required he could've raised that night in the state court and the state court proceeding couldn't i don't see any reason why i couldn't have done that he could have disputed the chargers and he could disputed the payment application he couldn't have raised the claim under arrest but until he had notified the servicer of the air received the servicers response and had the benefit of that response when evaluating the servicers position notably the foreclosure complaint didn't say were foreclosed ing on you because you had to because we placed flood insurance it that issue would have required quite a bit of digging graves will rip them all we all we know is the district doing with exxon exxon seem to me a timing case and the state court judgement didn't happen till after the federal court has jurisdiction so it didn't defeat federal denies a conclusion that the state court reached and i believe that the entire basis for the application of the record feldman doctrine in this case the argument was made but the holding of exxon is all about the timing that's what exxon is about and you're not going to get out of unleavened circuit case based on dicta you're going to get out of eleventh circuit case if a supreme court case says it's no good right the whole thing is all about the timing and what the holding is about the timing but the eleventh circuit has followed outs on mobile when and particularly don't see where the inextricably intertwined test has gone away and it's not our contention that the that it happens is just that the question that the simple fact that the plaintiff denies the state courts conclusion does not make it inextricably intertwined in order to become inextricably intertwined one element of the test is that it must seek to invalidate the judgment certainly at the point time that the judgment was vacated we couldn't do that in order to for you to win on the two counts that are remaining or that are in dispute here you will have to show that the state court assuming we're not changing the timing business but assuming that the state court judgment said foreclosure was good all these issues about whether insurance had to be paid for whether the counting was correct all that stuff would have to be wrong right well that would only have to be wrong if it was actually litigated in state court morning may it please the court market mabel behalf of adelaide and i think i'd first like to address two questions that the court has raised this morning number one is the issue of whether there was an opportunity to litigate of the issues framed by the rest bearer notices in state advances made that are doing knowing and should be included in the final foreclosure judgment these are issues that are litigated every day and were a jew decayed by the judgement on the face of the judgement it declares at the appellants were into fault for july one two thousand and eight something that they of the god frank act he's trying to use rest as a means of creating a secondary appellate process in federal court i'm a state court loser which is what rick or feldman says we don't want to have in federal court and i'm going to use the  procedure like an appeal i didn't take a timely appeal but i'm going to question what the state court did through a notice of error procedure as far as the dodd frank amendments rest that was on the books long before this judgment was rendered th every opportunity to invoke the error notice in the q w our procedures are pressed but if they wanted to they didn't do that if you adopt this argument they're basically getting to do through the back door what they can't do through the front door th create create a gaping hole in worker feldman and turn federal courts into secondary courts of appeal because all you have to do is say ok when the judgments over i'm going to send my respa error notices are i couldn't  judgment against them he was successful in getting the foreclosure judgment vacated he's not a state court loser is a state court winner let me just say this in the wild as far as being successful in getting we granted them a loan modification under which all of the amounts were stipulated to they stipulated to the default on the face of that modification and agreed to pay all those amounts in a new loan so has he been injured by a state court judgment has not been injured by state court judgement well that's what rocker feldman is all about as tall bench you're from come into federal court to complain about a state court judgement that you've been injured by two different questions he's not been injured by the state court judge to the state court correctly determine issues he's claiming that he's been injured by the state court judgement he's asking this court or asking the lower court to effectively reverse the findings of the state court and decide i don't think it matters how it got  don't see why it matters how it got vacated it's gone i agree with what the district whatever the district judge would do now would not tread upon any judgment of the state court the question that i have in this case is do we judge this by what happened at the time of the amended complaint or general do you judge of the time of the original complaint that's my question and i think that the supreme court guidance in a group of data flux provide the answer to that question in that case and they refer to it as hornbook law they made it clear that's justice scalia he loves the time of filing a lot of time filing but that is binding precedent and it and it does say  filing for purposes of subject matter jurisdiction time of filing as we look to it explains the rationale for that rule because and i think but that is that a case where it isn't the opposite were limited partners mexican limited partners on one side of the equation and a mexican entity on the other side of the equation after the action had was filed it had been litigated the mexican partners left yeah they said ok you know problem cured and importantly justice   there wasn't any mistake at the time of filing as to what the jurisdiction was in the diversity case it's just that the partners changed and you have you know you have diversity  jurisdiction which is already and narrow anyway and then and then you have this change which is quite different but i don't see that the reasoning in grupo is the reasoning that you would apply to a book feldman case where booker feldman itself is supposed to be interpreted marilee well i would submit that the same reasoning should apply for a couple of reasons number one subject matter jurisdiction is subject matter jurisdiction and the courts pronouncements work that subject don't die best the federal court of jurisdiction what we have is the opposite here judgment vacated after the time of five and the answer may be it's exactly the same but the question is how does that fulfill the policy of record feldman i think it actually and actually supports the application of group of data flex to this situation it again focuses on what were the circumstances of time filing subsequent changes and this is what this is what justice scalia said subsequent changes can always happen we don't want courts to the vagaries of subsequent changes and convoluted litigation of what the meaning of those subsequent changes are which result in wasteful litigation we want to rule of state of certainty we want to rule of stability let your think time funk a you flux and the issue was raised well what's the big deal so what's it you could file a new action anyway why bother to dismiss on jurisdictional grounds and they did because they said you have to have certainty you have to have a rule that provides some kind of stability so that you avoid these situations or cases or file record has no jurisdiction and then based on the vagaries of subsequent circumstances that issue may change and then we end up with a gating that this creates certainty where we don't end up wasting years litigating a case that we don't know what the subsequent circumstances may or may not be i would also add that these these these claims that he raises in the third amendment complaint forced place insurance  unique circumstance it's a it's not a factual change it's a procedural changes the dropping of a party that destroyed diversity as opposed to what were the external circumstances what were the citizenship what were the facts that existed at the time of case filing grupo was very clear that that narrow exception should remain that narrow exception and really apply just in the case of dropping the parties that we just also like to add that this principle is not limited to diversity cases  cited the supreme court case to case which extended the same principle to the issue of constitutional standing that you have to have constituted the determination of whether you have constitutional standing to be in court is a determination made based on the facts and circumstances as they exist at the time of filing you can acquire standing two years later it's a defect that needs to be remedied and you can acquire it that way so we think the law is fairly clear that the proper timeframe for determining jurisdiction is a kind of filing if you go to that you look at the circumstances that existed at the time of filing there was unequivocally a state court judgment that state court judgment adjudicated the very  issues that are being raised through this notice of error device and to the extent of the arguments being made it's sort of a semantic argument well we're not really directly challenging the judgment we've raised claims under arrest but this court has repeatedly applied a substance over form test under worker feltman in every one of the cases because solid alibi as springer the claims that challenge the of the claim not the label on the claim to determine whether in fact it is questioning what the state court did and if you do that it is abundantly clear that the state court judgment was being questioned any contrary argument is really blood on the face of the notices of error and pleadings themselves each notice of air refers to the foreclosure as a wrongful foreclosure so there is a judgment that's been entered determining these amounts are doing  default and they're challenging that determination and saying it's a wrongful foreclosure they repeat those allegations and all the complaints wrongful foreclosure wrongful foreclosure so why didn't you label this as a direct challenge to the state courts a judgment that is in fact what it was that's the substance of all the claims although it was ultimately amended their first and second complaints actually had a declaratory relief count in them in which the wherefore clause asked the district court to tell the state court vacate the judgment that was part of the relief requested that is i don't care how narrow only exxon dictates that we construe the look of feldman doctrine that is right within the bull's eye of what the record feldman doctrine  intended to do and i know that you would pose the question about whether the inextricably intertwined test has somehow been overcome and the answer to that is that it has not this court has had a key to address worker feldman a number of times since exxon was decided claims or whatever they might be under rockefeller i'd also just like to briefly address and i think the court addressed it but i just want to briefly address this issue about the pca decision out of the fourth circuit  that case a couple of things about that case number one it's a it's unpublished a p c a decision out of the fourth that has limited if any presidential value here but more importantly it clearly articulate a different record feldman standard than this court follows as the court pointed out in that case the lower court applied the inextricably intertwined standard identical to the standards of this court as applied in in casale alvarez and a number of other cases and the fo circuit reversed saying essentially that's no longer the test for us at least post exxon so they're applying a different test than this court is applying and lastly on the face of that decision there's insufficient discussion or facts about the state court judgment or the notices of error for this court to make any kind of evaluation or comparison to what's going on in this case they don't describe the contents of the state court judgment and what was  the notices of air certainly nobody is arguing that if a judgment exist any and every notice of error regardless of content or subject matter and any rest a claim based on it is barred we're not arguing that but in this case application of the record feldman doctrine in this case then borrowers could always challenge foreclosure judgments through the rest of procedures however that argument overlooks that preclusion would ordinarily operate to prevent lack of subject matter jurisdiction and therefore requires dismissal without prejudice that the borrower who believes that they have grounds to pursue the rest book laim that may be in tension with the state courts foreclosure judgment would still be free to do so under the federal statute but in state court because obviously refreshment would apply in state court so that only highlights why the issue should be evaluated initial complaint is defective and allege in the court's jurisdiction so that points against the absolute barly know that this is and that the fact an allegation the out if that is different at the time of filing like not just forgot to make an allegation about those facts that's correct and it's true that the allegation was changed to match the facts but rule fifteen  doesn't say that that cannot be done and the only authority that says that a change in facts does not change jurisdiction comes up in the diversity jurisdiction context and there is no exception to diversity jurisdiction record feldman is a much narrower dr and it does have exceptions one exception would be when the federal plaintiff didn't have an opportunity to litigate the federal claim that provides it's not a rigid doctrine like diversity and therefore it needs to be evaluated differently in this case the also the time of filing rule i don't believe either any of the cases actually discuss or deal with a situation where there was an amended compl and i don't know that the time of filing rule there's any authority for the proposition at the time of filing it doesn't refer to the amended complaint generally speaking when a complaint is amended the prior complaint becomes knowledge but but in this case the claims that are raised in the third amendment complaint are the same claims that were raised in the first in the original complaint with respect to this defendant yes that's correct your honor ok all right i think we have