know relating to her sentencing aside from answering the questions of the court i'm going to focus my discussion with the court on the first assignment of error which relates to how the district court calculated the loss in this case the district court then gotten to the point where the foreclosure was about to take place and received so form of communication from ms our pal and mr out in tears companies saying that the foreclosure could be cancelled put off and that their company would well i think your honor there was a very real benefit and the benefit was the opportunity to stay in their home for a price that was significantly lower than what they would have paid in mortgage for that home but more not necessarily your honor that's one of the structural difficulties of how the record developed and it was developed in a logical manner but what the judge did was first decide how he was going to calculate loss and then when he determined that it determined what was placed in the record so it's not clear from the record how the mortgage payments were added on very often when people are told that their home is going to be foreclosed upon the money start from the mortgage thousand you or we're just going to end up doing interest to the big donors it does stop accruing interest you know and that your honor i would agree there are costs associated with it and that may be something that would be considered in the last calculation either as a cost to the owner victim or to the lender but it would be the interest accrued was not a lot and somebody that is a loss to somebody that should be the same words by filing but if no payments are made to the lender during that time interest will continue to accrue you know the homeowner isn't getting the benefit of payments that are being made to the to your client and her partner as far as the lenders concerned nothing's coming in so interest to cruise other costs accrue the total debt gets larger maybe in some circumstances that doesn't have a negative impact on the homeowner because it may be an anti deficiency state or for whatever reason they can't collect but in that case will undertake the loss somebody's going to take a loss for each payment that doesn't get made i do agree that there is a lot but i would disagree with the court's conclusion that it's a wonder one exchange that it is simply the amount of the benefit that the owner victim received by staying in the home is the amount of loss that the lender would accrue to the lender and have much worse much higher because your client is being paid fifty percent of the monthly payments but the lender would be one hundred percent of the monthly payment and and would in fact so in fact suffering double the last fifty percent is paid your client the lenders hurting twice as bad or the unpaid amounts are twice as big as that well i  don't think that is correct your honor because it's not looking at the situation realistically and i think perhaps turning to this court's decision in harper and the analysis that the court use there where they talked about a scheme  an equity skimming scheme and the people who fell for the scheme were in a position where they had little or no equity in their home and they were facing foreclosure and the defendant in that case persuaded them hey listen you have to deal with any of the last concerns it's not going to go on your record just let me take it over and people said ok here and that was the benefit they were hoping to obtain and in fact the defendant simply rents felt the property until the mortgage company was able to take over and looking at that case the court said realistically we have to consider the financial situation the mortgage company wasn't getting paid that hasn't really changed  characters in the harper case in harbor you have the owner victims and the lenders and then you have renters people who got to use the property they got that benefit of using the property victims who were not paying their mortgage and were causing a loss to the lender and that's how they got their financial position the court said they the loss of one hundred sixty thousand dollars in rent collected was a lost of the owner of this because they could've either stayed in that property and not made accommodations for themselves or rented it out until foreclosure and collected one hundred sixty thousand dollars in this case that it's substituted down to two in harbor the renter victims the people who got the benefit of having a roof over their head did not suffer a loss and well those court made accommodations for if they could come forward with some other basis but they did the court recognizing the benefit of having a roof over their head and in that case as in this case it did in one sense permeated with fraud in the sense that the key for the making money was a fraudulent tax but they still found that there was a benefit to the people stay there and so forth that rent free but there certainly was a loss to the lender and i'm not i'm not sure i understand how the loss to the lender would be perhaps double are triggered by and it's my assumption that injected so i understand it payments of fifty percent or more but at least fifty percent of the regular monthly payments were made to your client i project from that ok assume fifty percent is pay that means the lenders not being paid two times the amount that your client is taking in so he's actually the lender is actually losing twice as much is that the amount being calculated by the district court for the fraud does that calculation was based on the amount paid your client as being skimmed off oh the lenders again the lender was getting nothing there and this is this is the difficulty and what the court is being asked to determine the proper structure for calculating loss because now we're speculating as to what the lenders loss is in many instances the lender stops accepting payment once the lender makes the decision to foreclose and then the lenders are taking  already owed a certain amount of money and they have called for the entire payment of the loan and so and the interest continues to accrue so the simple question in the case is all of that is based on speculation depending on whether the case the cow out of court has been a deficiency or an anti deficiency course why does that matter someone's going to lose somebody is not getting the money that your client is getting correct but the there is also a benefit that is being conferred on the owner of victims and their getting to stay in that property as opposed to not saying that property in which case the law still would accrue there would still be a deficiency judgment of a certain amount and the owner of victims would have to be paying for housing in another location it is far more consistent with the court's decision in harbor in which case the court recognized the benefit of having a roof over your head then in contrast with the other cases cited by the district court in which there telemarketing schemes in which a refund for instance is not considered restitution but i do think it's relevant when the question is what is the economic harm caused by the defendant's conduct i do think there needs to be a waning of those different c gone to the lender that that is the fallacy created by the fact for whatever reason perhaps to pursue their ability to foreclose that they have stopped collecting money from the owner renter or owner victim excuse me so the money that is being collected is not was not money that would have gone to the mortgage company at least that is not an obvious question in the standings westberg that is certainly the fine and i understand the court's problem but one of the there were three promises made to the owner victims one will stop your foreclosure two will negotiate with your lender and three will get the payments settled added on to  it was not simply a side benefit that the foreclosure was stopped they did it through improper means but they did go through a procedure to stop the profit and there were victims alleged victims who were happy with calculated it didn't have the late the loss to the mortgage company and therefore when we're looking at what it considers it consider the loss to the owner victim and and we argue that it should be offset by the benefit the owner victim received and the court said no no there's just a one to one exchange with this lender so we don't have to consider that structural argument your argument is quite different but i would submit it would come up with a very different number which is what could the mortgage company theoretically have obtained at our client not interrupted the pro homeowners and mortgage holders and as a result of fraudulent lee inserting herself into that relationship siphon off in excess of one point six million dollars  benefit to the defendant for two reasons number one any defendant who had equity in their home i'm sorry thank you any victim homeowner who had perhaps the injury to the equity in the property is something less than one hundred percent of the amount that should have been paid to the mortgage holders but certainly there is an impact on whatever equity there and then it may have been on the property and secondly then the home owners were in addition to paying fifty percent directly to the dependents so so i don't see that they got any benefit at all in fact suppose there was no equity in fact my own experience having them do with  geographic character of it i have been involved foreclosures in california and there aren't that many situations where homeowner has any appreciable equity to actually get to the point of foreclosure sale and bankruptcy and whatnot or four months and that's all that i really want to do i staved off that day when i'm addicted and thrown out of the street and for me it was cheap it's half my mortgage payment is that person get a benefit to the extent that if that homeowner does get a benefit it is a loss to the mortgage company arguably you could say that a homeowner in those circumstances is getting to stay at home or who has no equity in the property is getting to stay in the house for an extended period of time for lower payments but the payments are going to the defendant not to the rightful owner of this payments the mortgage company so whatever benefit there may be to the homeowners is actually a loss to the mortgage company how about the suggestion the mortgage company wouldn't accept those payments anyway and i'm not sure that i'm sure that it's a factual assumption but it's been argued that the mortgage company wouldn't have taken the payment still go back to two other points number one is the defendants gain from the fraud scheme is an appropriate measure of on some of the sentencing guidelines and here the defendant's gain is the one point six million dollars it's money that the defendant was not entitled to its money the defendant obtained by fraud and none of the cases that the defense sites that provide for some discounts were value creating a discount defendants mentioned earlier when in harper the court made it clear that i thought it was appropriate to hold the defendant accountable for his gain which was the monies paid to him on the properties which he had no legitimate entitle ment to even those cases that talk about providing some discount for benefits obtained do so only when those benefits are created through non project an activity that for example in the bar in certain records you had people performing medical services where there was no showing that some of those services were fraudulent here however that is not the so i think that i think frankly that the getting to the defendant period is an adequate calculation of last and that you don't get to questions of benefits but even where you well i guess my response your honor would be simply that the court has said that you should look to the economic value that is lost in circumstances where there is a benefit conferred that that it there is that alternative in the guidelines and i think what the court has said is that that is not an appropriate gauge to just simply use the gain when there is a benefit conferred in other words that