jumping to the issues before the court and i think it important since the question was asked by the issue about my position as a principle it's only logical position because in cases of this and so i think it is wise to call that a situation where i was involved would advance this particular matter for this court from an economic standpoint but issue there were two obviously competing summary judgments that you've completely convinced that the statute of frauds was the basis for the district courts one of the bases for the district court's opinion was  the alleged verbal agreement as one or the perceived verbal agreement as violating the statute of frauds and so the court never raised the issue of the detrimental alliance  they never did he did it court never did simply because of the fact that the statute of frauds eliminated her interest in the particular matter in fact the evidence that was supplied by in response to the defendant's motion for summary judgment demonstrated that there was a contingent reversionary interest by ms wood and that evidence and that's the agreement she came to even recall when it was well it had been years since that particular instance and when she was she was asked in what is part of the record is she knew she didn't get the property but she knew that she was going to receive something in in in furtherance of that so she didn't get the property but she did the property which thereby further miss wood can't remember but mr horne signed in his affidavit that this took place perhaps that's in the form of the torts discretion to admit evidence maybe maybe the reference is really to the fact that i'm not going to consider this as evidence just like you know it's hearsay or something along that lines he was sort of course the power to make a ruling to that effect but i did not read the court's ruling that essentially and based on statute of fraud that should that information should be barred it could conclude that it was merely a berm an allegation and not consider that particular statement but irrespective i'm sorry judge just the alternative before the court shows that she transferred her interest in the property to a c o j o planted evidence including the horn declaration fails to create a genuine issue material fine that's why i'm a little and that's why i think it's an open question how the effect of the statute of frauds r well i don't see how if the court actually so has so on one of the things that i can understand is that the court was saying that this was insufficient evidence not based on statute frauds and in the context of this particular memorandum opinion upon what basis does the core of the trial court rule that it is insufficient i can't see how it is that that the clear meaning of the affidavit is  this is the transaction that was died and this is the continued reversionary interest that he stated the only basis under which i think that a trial court can say that is not going to consider the affidavit testimony is if it directly contradicts previous testimonies the only legal basis i know where it can simply disregard but in the facts that were being a bird or at least gives me a letter stated in  the basis of that particular decision and so for that reason we move back to the issues that are frauds and even if that were the case why the discussion about the statute of frauds if it was the court was going to disregard that particular evidence why have a discussion about the statute brought want to just jump to the issue of the evidence and for that reason i think that's the basis of the reason for the court ruling as it did on the statute of fr and but troubling as it may be the statute frauds came into play in the courts analysis some way somehow and without which it is questionable whether the court would have ruled or should have ruled as it did that in that in the record is that she tried they she received acceleration as she tried to work out an arrangement to extend or to renegotiate  recast or no and the bank was well within his right to refuse to do so ok but the bank because it's a home equity loan bought a lawsuit to receive in order to permit it that the bank to foreclose the bank lawyer made it very clear they were going to move foreclosure and after she signed off on the agreed order before giving the court given the bank commission to foreclose she moved out and the affidavit testimony makes it very clear that she relied on the acceleration notice and the bank's position that it was moved or the foreclosure was she obligated to move out no she was not obligated to move out there was no foreclosure there's never been  but she moved out because of the position that the bank was taking well she she moved out several months later and i'm looking here for the for the date just one second for five months later when i while i believe the order was in of december so she moved thirty to sixty days after all of that transpired and what was important in that affidavit is in the entire course she was still trying to work zero sixteen point zero three eight doesn't apply in this particular situation because at the time it was in the act it only applied if the statue of limitations had already run when that sachi was an act of the statute of limitation allies and the other is an objection sixteen point zero three eight doesn't even speak to either one of those exceptions are those doctrines even really in texas long as i understand it or rely on this texarkana case well there this circuit has recognized that particular detrimental alliance exception in fact in that the two thousand and sixteen the bitterroot case analyzed the issue of whether or not detrimental alliance there was sufficient evidence of  never granted relief on this detrimental reliance theory under texas law i know there's been more than one case on a grant you the dicta but it is to me somewhat of a surprising theory i'm just curious if there's actual solid texas law saying yes we are recognizing this and we're granting relief based on it there's over twenty cases federal and state that reside these debts of no alliance exception and if we exceptions and numerous cases that analyze the issue and dealt with the issue of death and no alliance but none have found in favor of have found sufficient evidence to we've we've talked about it's existence in the discussion but you don't have a case that actually grants relief and therefore codified that even as a matter of a lower court in texas let moment of supreme court no i think i think many cases would you think of sort of firing that question the texas supreme court if you think that is if it is in fact a solid part of texas locks i'm not convinced that it is texas law but certainly we're not the texas supreme court what is your view on sort of creation i have no objection to it but what option to exercise something in the future and that party exercise that option let's take mortgages out of the picture just as call it contracts exercise that option the other party to the contract detriment relies upon that exercise to this particular situation is completely understandable and reasonable and makes common sense because i understand it in this case you've got the lender making an offer we have there's already been a failure to pay there's an offer  to actually settle that one price point is the idea that you can detrimentally rely on the assumption that that's the best and final offer and a better offer not coming later that's what strikes me as a sort of a weird aspect of this theory i'm sorry all of your dreams you understand this theory to be i thought this was your best and final offer that sort of offer to settle if you will with some sort of how i think of it and therefore i moved out i was not i was not assuming that you were going to come back and give me an even better offer settle later you know i think the detrimental alliance goes back to the issue that at all times in the lawsuit that was filed by the bank to get foreclosure they were unwavering in the fact that they were going to pursue  foreclosure based on the two thousand and eight celebration of this and when they were unwavering in the fact she presume that they were not they were and they were going to not relent and she moved out based upon her reliance on the acceleration notice and the bank forward and that makes a yes or no it does make sense that a bank comes back after the first acceleration and says you know what we're going to be another offer it's an even better offer of than before and so i guess to my mind how do we know that texas law says you got to count on the assumption that the first offer wasn't necessarily the best and final offer of a better offer was coming so what you're speaking of is is i guess if you don't reach eleven months later they they came back it's a notice saying we will accept less than that all of the principal amount plus the ridges certainly they can do that but my client couldn't i don't think that necessarily unwinds the debts of the lines if she's already moved on and the card expenses in connection when she's moved out and all the other evidence is presented then at that opportunity to say ok or not back into the house party and she could have moved back yes all right thank you you save time for about mr hans and the question of whether there is a detrimental detrimental reliance exception to the lender's unilateral right to ban an acceleration i'm not the texas supreme court you're not a texas supreme court  don't know how that court would resolve that your question is interesting judge how as to serve cation i think in the appropriate case serve occasion would be the right move i think in this case when there are so many other bases for firming the district court's judgment i think it's probably not the right move in this case but certainly i'd like that question answered i personally have have obviously been advocating that there is no exception i've got a number courts and the trial court level to at least agree that it's a question to me this is a frequently recurring issue well in it is and it's sort of it more recently because when this court decided or and and other courts followed oren's holding that a notice of default that sought less than the total amount due did constitute abandonment of acceleration  object and my response to that is that's right it doesn't and that's because the legislature has said if you accelerate and then you send this sixteen over three eight notice it doesn't matter if the borrower objects and i think you're heard correctly from public counsel looks like you're past this against the backdrop of no contrary court at least in terms of actually granting the theory they're speculating about the theory they think it the born has been widely accepted not just by the federal courts in texas but also by i think there's seven or eight now published texas court of appeals opinions that have adopted bourne's reasoning and and essential and also sixteen zero three eight so it's you know it's a new theory we've seen a lot of these types of arguments in the last few years but what's true is that no court has ever adopted it and applied it you know a maximum of statutory construction is consistent with the discussion you've had the colloquy you've had with judge show is that we assume when a statute is passed like sixteen  legislature is away or of what's going on in this field and if it had intended denture mental reliance to be an exception it would be in the statute and you know the idea that we'll have courts amending these state statutes you've got to you've got to have a lot of bases for doing that and that doesn't appear to be the case in this instance i believe your honor that the legislature is charged with knowledge of the law when it acts statute and that and we cited the case in our brief in the maxim of statutory construction that the legislature is presumed to know what the courts have said  and i didn't delve into the legislative history of sixteen zero three eight in this case but it certainly was a statute that was proffered and acted specifically to try and deal with all of these abandonment and and statute of limitations type arguments that were being advanced by the by the by the powers bar so my mind i think that maxim cuts in my favor because i think it shows that the legislature was aware of what the courts were doing and what they were saying and specifically declined not to adopt the exception that's been repeated like a montra in for twenty years but never applied so that's that's sort of my position on the detrimental reliance exception and whether it exists or not obviously you cited the number of cases that have sort of questions its existence i think those cases are important not only for that point but also for the point of because all of those cases the smiths say well we're not sure if there's a detrimental reliance exception but let's assume there is the evidence in front of us isn't it and those types of cases have included plaintiffs or borrowers if i think i think you pretty well covered that so why don't you tell us what it is is there or is there that she moved out of her house because of the celebration that's in the affidavit and i think it was judge parcell correctly pointed out she moved out actually almost two full years after the celebration notice came out the celebration was march of two thousand and ten and the move out was january of two thousand and twelve so right there just temp coralie the notion that she moved out in reliance on the acceleration i think is is a little bit faulty but then you look at her deposition and we asked her you know why did you move out of her house she didn't say i moved out because the bank it accelerated she said i moved out so i couldn't pay my mortgage and that's why a lot of people move out of their house lot of people brother keys in the door and say let the bank have it or people when they can't pay their mortgage you know death in the family divorce business when under lost a job they sell their house vacate their property that's what people do when they can't make their mortgage payments that's what ms wootan did was she moved out of her house and she moved into a senior living facility now there's some very vague assertions in the affidavit of how this was a really bad place the evidence in the record shows this was actually a pretty nice place this was a senior living facility in a gated community surrounded by a nature preserve with a movie theater a swimming pool a salon a spa a fitness room it was not a row house that she was forced to move into and putting that aside bitterroot this court's opinion of bitterroot has already said that just moving out is not sufficient to constitute detrimental reliance under this exception so what mr mays el who's obviously aware of that case is tried to do is tried to dress it up by saying well off she had to sign a lease and she was personally obligated on the lease and to me and i think this is perfectly in line with the cases that we cited in our brief that just means you owed money for housing before and you owe money for out in the housing now the only difference is you actually feel like you have to pay it back and that's not detrimental rely it's that simply finally agreeing to live up to your housing geishas and it's the same context of the people who thought that they were going to have to move out and so they went out and and one case the erickson case they actually secured permits and financing for building a second home and judge parks in that case said no that's not detrimental reliance that's paying money for your housing and that's what we have evidence of here and i submit that the case law is very clear and i think just as a matter of common sense that's not detrimental reliance that somebody would be expected to pay for their housing and even after the second offer that i guess what the thirty eight thousand  offer she still didn't move back home and that's true yes that's correct yes she had moved out the subsequent notice of default went out and it was a temper of two thousand twelve if i remember correctly and there was there was no response since then there was then another seven thirty six action that was filed that one was was dismissed and then finally another one which led to the filing of this lawsuit so in late two thousand and twelve when she got the thirty thousand dollars second offer she didn't move back and that is for any reason to think she known that offer was coming back in two thousand and ten that she would have stayed in the quarter that offer two years later i don't i do i don't know that there's a way to answer that i don't think there's any anything in the record that would reveal that or that she was asked that sort of specific question deposition but at any rate i and so i think that the the point stands that there's no following her move out the next day there's there's two additional bases for affirming the district court's judgment beyond the detrimental alliance doesn't exist and number two even if it does they didn't submit evidence of it the first of those is just terrorists beaten specifically due to tara that plaintiff did not submit any evidence that it detrimental relied on anything and the district court very clearly found and i think correctly found that a party that is asserting detrimental reliance has to be the party that did the detrimental relying if you will  did not do anything to change its position fact the only thing it's done with respect to this case is acquire the property not from ms wooten but from this nonparty scojo which is another entity also controlled by mr horn and mr ray so and there's no evidence in the record as to what constitutes constituted that transaction other than a deed conveying the property from scojo to t said a party asserting detrimental on reliance has to provide evidence that he or it or she detrimentally relied to tara did not such a terror should not recover anything in this action and then as to ms wooten and it's kind of funny that mr mays all started with the statute of frauds because as to ms wooten the court found she had no interest in the property and and the each other for breach of warranty of title or for failure to perform some amorphous agreement that ms wootan doesn't even remember the terms of the court was simply saying this is the only evidence i have from me i have a three sentence one paragraph description of a contract which in very i would say nonspecific terms talks about a potential conveyance of the property back to wooten and i think when you were talking with mr may's owl about this and the question was whether the district court had simply made an evidentiary ruling or not if you look page ten fifty two of the record it's just a little bit further down from from where you were reading but the court says because plaintiffs have failed to present competent evidence showing that ms wootan has an interest in the proper and that's exactly what we objected to we filed objections in the district court which said this is not competent summary judgment evidence and the this report very clearly said we agree or i agree this is not competent summary judgment evidence and it's not quite frankly for a lot of reasons statute of frauds being one of them but only one of the district court also said for example that and this is an age ten fifty mr horn does not explain what quote the agreement close quote is so the district court clearly found other reasons to distrust this very affidavit evidence  and especially in light of the fact that the undisputed record evidence showed that ms wouldn't had conveyed her property and not only had she conveyed it to scojo by a warranty deed with no exceptions compensate somebody if liens were quote substantially mitigated whatever that means concerning the statute of frauds does the statute of frauds an affirmative defense  yes it would be on a no if the affirmative defense belongs to the party against whom a contract is being there you're seeking to enforce a contract that's correct or a well how how can it be a basis for the district court to say i'm not going consider this agreement i mean because if the district court is assessing the kompany competency at it it has to be raised by a party to the contract i'm not sure anyone can come in and sort the statute well and i don't disagree with your honor on that point but in the context that the district court was was analyzing the evidence the district court wasn't making a finding and saying  because her contract is not in writing that's not what the district court was say what the district court was saying was i need some evidence from you defendant because from you plaintive because the defendants have come to me and showed me the evidence that shows i gave it away ms wootan gave her property wait no exceptions no reservations where's the evidence that she retained any interest and the only evidence is this affidavit that refers to an agreement that i think we all can agree would be unenforceable and the district court said as an evidentiary matter that's not enough and  i'm not asserting it as a defense to any of their claims i'm asserting it and that's the only context in which i did assert it as this evidence is not competent because it is a very vague description of an oral agreement to convey a property that's disputed by the actual documentary evidence and also by the testimony of one of the parties purportedly to the agreement if if it's true that the law in texas of getting into the policy issues that might might surround this question of the lenders ability to abandon acceleration works to the  you think about it because that means the lenders not foreclosing despite the fact that they're still not getting paid and i suppose you could probably come up with a scenario in which and i and i i think it's probably true that a lender could in perpetuity issue letters under sixteen zero three eight before the day before the day before the four years after acceleration and they could do that forever i wanted to go to the issue of judgment you were talking about the detriment reliance piece what's important and acknowledging understand is the type of mortgage this was it was a home equity loan which basically means it's a non recourse l no matter how indebtedness wouldn't becomes there would be no deficiency judgment and that's what the bank agreed to and there's a solution then and we all can say well you know it should be good that someone squats in someone else's property and not pay i get that but the bank agreed to these terms and there's a solution that the solution is foreclose event and judge how you talked about what is this never ending stream of five ten years and here we are almost eight years since they originally celebrated think about if they continue to just not even though that if a homeowner stays in the property they benefit but if they don't stay in the property they is a detriment to them simply because for years after they got into some trouble they don't have a foreclosure on their record it's devastating from a credit standpoint so they are detriments to all of this by by the way that mortgages mortgage companies or loan services are doing all these things you also indicated and now i thought it was important was that when the offer was given nine ten months later the record reflect that she was in a one year lease was she to break that lease to go back into her home no she had detrimental relied upon what was going financial or legal consequence of moving on and that's what we attempted to do and we think back to the nonrecourse loan if miss wootten had stayed in the home all these years she was no more and dad she would have never been no more dead than she was the day she moved out because it's non recourse now so when she moved out that was a clear detriment because she obligated to sell for a lease the record correctly she can make her mortgage payment and faculty she moved into the lease the lease was the lease payment was greater than a mortgage payment for what they were asking him and not for the leaf the one year commitment to the senior living facility she would have taken the offer of move back and paid thirty eight grand or whatever it was well that's that's the thing is that she would have been able to to pay the thirty eight thousand dollars she didn't have the ability and where is the detrimental