the court diane maynard on behalf of fannie mae i'd like to reserve three minutes of time for rebuttal if you may but keep track of your time because we will my ask questions thank you under the plain language of the statu and the guidance of the agencies charged with interpret ing it fannie mae is not a consumer reporting agency under the fair credit reporting act this is true for two independent reasons first by making software mae is not itself in gauging in the assembly or evaluation of any information and second in any event fannie mae's purpose in providing the software is not the purpose covered by the statute i'll start with the first reason under the statute to be a consumer reporting agency someone must engage in the practice of assembling or evaluating consumer credit information that means the tx requires the person to actually be doing it themselves but here fannie mae makes software that may allow others to do that you know anybody buy the software you have to license it from fannie mae but you may license the software from fannie mae and they pay a price for that not anymore your honor but at the relevant time yes they paid a licensing fee to license the software we have to worry about the licensing contract i think the licensing contract is relevant here to the extent that it shows that it the person who's using the software is the one who is engaging in the assembly or evaluation of any information the license makes clear that it's the lender who collects the information from the bar and enters into the software is the limit or who must enter into separate agreements with actual consumer recording agencies reporting agencies to gather data on the lenders credit history and it's the lender who uses a software to pull that information into the software and then it's the lender who generates the findings report that is generated all of the relevant activities are the lender now the debt counseling with respect i mean you sound like you know saying we're not a transportation company were a technology company we just provide software that connects our drivers with passengers so don't expect us to be a transportation company when  the agency decides to do this and the ramifications of what it's doing are people get a don't get their loans because of that generated information and it may be erroneous you are no longer just the providing software aren't you i think the judge wasn't under the guidance from the agencies software providers even software providers who allow others to assemble and evaluate consumer credit for make and so the agencies have  addressed a long time ago a specific example where a software company developed software that would allow someone to import the data from the three main credit bureaus and merge the data and then and the f t c conclude that the software company in that case is not the one doing the assembling and evaluating when fannie mae develops these algorithms your honor there's a consumer information in them it makes this tool available and i think it's important to take a step back and see how this developed fannie mae puts out a selling guide a manual book that before fannie mae developed this tool that lenders can choose to use lenders the only way to do it was to manually underwrite using the book in that instance it's clear that fannie mae is not the one going through and analyzing and the same is true just because fannie mae has made a tool that if lenders choose to use it it can automate to a certain extent within the limitations of software that analysis it's still the lender who's choosing to use the tool is still the linder the lender is the only one who's interacting and inputting the data into the computer program and that the district court thought otherwise because the lender is unaware of the proprietary formulas that fannie mae has used to create the software but that's true of all software and if that were true then the f t c example would be wrong all of us use tools every day including software tools that we don't know how it works that doesn't change that doesn't make the developer the one who's using the tool so no i think the facts here show that all what the enemy is doing with relation to the software is just developing the software and winders are the ones who are doing any assembly or evaluating but the machine itself it doesn't tell you that two you put in but it's yes but it's the lender who puts the data and if that's your point i take that's our first point the lender is the one using the tool choosing to use the tool t lender is the one interacting with the borrowers information after also a lender who's meeting with the borrower the winners collecting that information from the borrower the lender is required to get to buy and purchase and get agreements from separate you know the big unit consumer reporting agencies input that data into the software but then to our second point your honor so that's one reason why the district court is wrong is a court is also wrong because it believes that it did not matter why fannie mae was making this software available but the statute requires an inquiry into the purpose and the agencies both the f t c and the consumer financial protection bureau have concluded that simply the fact that one evaluates and assembles assembles or evalu information and provides the results of that to another does not put one into the definition of consumer reporting agency and here the purpose fannie mae's purpose in developing this software is to allow lenders to get a plumber a view as i said earlier of whether or not and under what conditions fannie mae but might buy the loan after all fannie mae doesn't make loans in the primary markets not allowed to make loans to consumers it congress created fannie mae to create liquidity in the in the primary mortgage market and so fannie mae is giving is created this tool its purpose in creating this tool is to allow lenders to assess as they do with the book the selling manual whether or not fannie mae might be willing and under what conditions to purchase the loan that's not the purpose covered by the statute the and it's very similar to the agency guidance from both the f t c in this and the consumer financial protection bureau which have said that for example in the instance where a lender might share in from a shin with a private mortgage insured about a particular consumer to see whether or not if the lender makes a prospective loan to this consumer the private mortgage insurer would insure the lender against the risk of that loan and both of these agencies have said that in that instance neither the lender nor the private mortgage insure is is consumer reporting agency because their purpose is to assess that particular transaction their purpose is not for the purpose of providing consumer credit information to third parties fini maysan in it exactly analogous situation here even if one thinks and we and we don't that fannie mae is assembling or valuing any information by making the software tool available its purpose is to give the lender a preview just like with the portage mortgage private mortgage insure about whether or not fannie mae will in essence you know back up this particular loan to this consumer it's a very transaction specific in gage mint and therefore doesn't make fannie mae a consumer reporting agency kelso i have a sort of off the wall procedural question to ask you you know both of the parties seem to assume that we can review a denial of summary judgment for what is your view on whether that is sort of procedurally available to us it is your honor this is not this is this was a grant of summary judgment that the district court granted partial just you think that should have been granted in your favor right we  do so it was competing summary judgments but if this isn't a situation where summary judgment is denied and it and then the issue on which it's denied goes to trial and further facts may have been developed at the trial this is not that situation this is different this leak this was a straight up legal question both parties argue didn't cross motions for summary judgment the the district court granted partial summary judgment to the plaintiffs on these two issues and therefore when we went to the trial the jury was instructed as a matter of law that fannie mae was a consumer reporting agency and met these two elements and that sets an issue for so it is preserved for appeal it isn't it isn't it isn't the kind of situation that you're thinking of where or that you may think you know where summary judgment is denied and then it goes to trial an actual grant where this is was taken off that we that it would have been futile for us to object at any point after that the judge had squarely ruled that it had been judgment on the legal question of whether or not fannie mae constitutes a consumer reporting agency under the statute i would like to address a couple of issues that that seem to be of interest to the court judge wallace you raise the point that the upshot of the desktop underwriter system is that it will convey to the lender whether or not fannie mae is likely to buy the loan that seems to be a linchpin of what fannie mae has been arguing we'd like to point out that if provide this report desktop underwriter findings report specifically so that the lender can consider the information in it for purposes of evaluating the consumer's eligibility for a mortgage loan so i want to pose a hypothetical to you and get your thoughts on that suppose that a completely separate company google or microsoft or somebody like that says well you know i think we could make money by putting together a different even easier to use software tool for lenders to use in their dealings with fannie mae and they had a spiffy version of this do you know that was you know even better and you could license or purchase it would they become a credit reporting agency i don't believe so and how is this any different well i would like to say that's probably incomplete facts on the hypothetical for me to say definitively one way or the other but in the situation that i understanding you to describe someone is defined designing a technological tool for lenders to interface with fann and that's exactly what happened here it just happens to be that fannie mae is the one that also use the google or the marker so we would respectfully disagree i think that the record makes clear that fannie mae isn't selling a software product as judge wallace pointed out it's not something that the lender downloads on their computer and then proceeds to use what this is is it is an electronic platform that you need to go to a web portal and basically knock on the door and provide input criteria no defined it's voluntary you could still do it manually but for companies the lenders could still do it manually if they want to absolutely absolutely now we know that as a matter of course overwhelmingly lenders don't they want the automated process it's easier just like my microsoft or google example but the reason that i think that your hypothetical is distinguishable is that this isn't a situation that the lender is using a software product what the lender is doing is contacting fannie mae and in putting criteria just the same way that seniors would contact trans union and say i would like a credit report the lender contacts fannie mae and says i would like a desk i don't write you haven't read a report from anyway that's the difference they don't get a credit report and they went they get is an indication whether fannie mae will automatically purchased along if the lender chooses to make it what i would direct the court to an actual copy of a desktop underwriter findings report which can be found r five forty two to five forty seven for instance this is a six page and now with this of the input criteria the lender says here is the borrowers name here is the loan that wants here is a credit report number for a tri march report that he did but he's not done for the purpose of furnishing that information to third parties it's done for fannie mae and own purpose of determining  purchase a loan and that's a requirement of the statute i don't understand how you get around that ok two point number one is that if a any may only wanted to determine whether it would buy a loan it would do that after the loan is consummate doesn't have to this is a hypothetical loan the record can firms that fannie mae has a separate process when a loan is delivered it goes through a separate software program at fannie mae to confirm whether the loan that is actually delivered will in fact be bought i know but i don't understand how that pertains to furnishing reports to third parties that is not fannie mae's purpose your is your argument the same for those who use the now less popular manual method of informing fannie mae or what the intention may be in terms of the law in other words the use of the software is optional it's popular but it's optional so i'm asking now if the lender does all this manually is your argument the same or different lender does this manually there is no implication of the fair credit reporting act whatsoever so it's merely the fact that people choose to do this by a computer that makes them a reporting agency now if you look at what fannie mae does if you look at the operation of the desktop underwriter system the electronic network that we have uncontroverted evidence pages and pages in our brief between five and seventeen with numerous record citations the totality of the operation of the desktop underwriter system has one objective and that is to return a desktop underwriter findings report to the the desktop underwriter findings report does in fact convey a recommendation it also conveys an underwriting analysis it conveys raw credit data it conveys fannie mae's observations about what it saw and the sole purpose for the operation of the desktop underwriter system is to return that report and that's absolutely dispositive because if you look at the definition of a consumer report it's any communication bearing a lot of consumers credit worthiness that is used or expected to be used in whole or in part for purposes of a stablish a consumer's eligibility for that mortgage and fannie mae can see that the purpose of desktop underwriter is to help the lender originate the loan that is  quote from fannie mae desktop underwriter is intended to help originate the loan the sole purpose is to return that desktop underwriter findings were port so that the lender can utilize that information as a factor in considering whether or not to make the loan that's what makes it a consumer report by the play definition of six hundred eighty one a d the information in that desktop underwriter clearly weighs on the consumer's credit worthiness and credit capacity it is communicated to a third party the lender and it is not only expected b used by the lender to make its decision as to whether or not that loan will get made and that goes to a judge last mix point that in reality this was fundamental information relied upon by the lender to deny this that's why the before consummation versus after confirmation const consummation is fundamentally important because if they truly o intended to say yes we will buy a load or no we won't that happens once the loan is made on the back end and the record does confirm they have a separate process to do that when fannie mae actually can the fact that they could do it before or after doesn't mean that the two don't have the same purpose your argument seems to assume that if there you have a predictive  decision rather than an actual decision it's somehow a whole different animal and i'm not sure why that would follow i don't believe so i think that if you look at the four corners of the desktop underwriter finding this report you cannot determine that it does not bear on a consumer's credit worthiness which is used or intended to be used as a factor in considering whether or not they're going to get this mortgage so i'm not suggesting that it doesn't have included in it  predictive term of whether or not fannie mae is likely to buy this but but the reality is the lender uses that as a factor in considering whether or not the consumer will get that mortgage that's what makes it a consumer report so the an ambiguous language of six hundred eighty one a half of consumer reporting agency says the assembly or evaluation of the information needs to be for the purposes of providing a report well i'm still i also still i'm not there on the assembly of the information because it's the lender that does it it's like if i gave you a blank form to fill out and say you know do you do you want to driver's license give me your address and your name and all this information i'm not assembling and i'm giving you a form so how are they sam weighing the information that's input that is flatly contradicted by the record the lender takes a loan application and provides that input criteria to the system as a request to get a report and everything else is done within the fannie mae system within that network by fannie mae they all the time every day you know what we say i understand what we all do but to answer my question it seemed to me it seemed to me that that you've skipped a step where i don't believe so because if if there is software going well but i'm creating an analogy to the big three i understand you made your analogy before but like to have you remain with my question i am still having some difficulty determining why the case should turn on whether fannie mae has it in a written form or on a computer for but it is not a written form we wouldn't be here it's on the written form it doesn't produce the same kind of malice and if there's a if there's a written form there's no return of a consumer report there's no return of a desktop underwriter eligibility for the loan but to answer your question more specifically the ne may take active steps at every turn within the desktop underwriter system the lender lender is using this software one that because the software is not software product at all that anybody installs it is a dynamic electronic platform controlled design program but didn't you know stay over you know electoral property or fake came up with a better form that had all the same stuff and all the same kind of analysis that that would help the lender talk to fannie mae about whether a lo would be purchased you would you would under your argument they would become a credit reporting agency even though all they have done is design software but i don't believe so i think that does touch on the seller of software exception that the defendant refers to from the f t c and the distinguishing characteristic in that cast opinion is whether or not the seller of software the designer of software ceases to have any connection to the process or to the information in the hypothetical that you describe microsoft creates the product packages up sends it off and how people use it microsoft has no connection to that fann mae is operating its network it's getting the raw credit data it's applying the business rules it's storing the files and taking file by file money we were doing those  underwriter every single day that is what their job function is to apply those business rules and apply that risk analysis to alternately produce this report that's all they do thank you our judge well us know the record shows and i quote from miss think those decoration at e e i are one two three no individual or entity at fannie mae evaluates any consumer credit or other information or is otherwise involved in this process other than of course as creators of the computer code that comprises the software application but miss maynard you know again we're we're trying to break through to a new technology in a new world where we don't do things the way we used to do you know when i try to get a car and get around i don't interface with any person in that either it's a computer program that sends me to the wrong place and gives me the wrong access code and does doesn't loud me to get the car but you know it's like fannie mae set this up they're the makers of the intellectual property they tinker with it every day i'm sure you have a department working on it all the time and upgrading it and the like and so the fact that it doesn't have a human being on the other side is just welcome to the new world no your honor  that fact that doesn't have a human being involved is relevant to the statutory language which requires that a person be assembling or evaluating consumer credit information and here the only person to use me within the meaning of the statute doing that is the lender the things to which counsel points in the record are the the making of the software itself and as i indicated originally and it the record shows that this when fannie mae develops a software connection to the information language in that opinion that's not was not dispositive in that opinion and the f t c reaffirmed its guidance in the twenty levin forty years report and did not put that caviar on it the point is that yes we are moving into a modern world but that shouldn't that what's really going on is that the lender is using an electronic version of the selling guide and the fact that it's automated now and in some instances easier for the lender to use should it change it from  being the linder who's the one joining the selling guy gave you guidelines to apply but the lender came to their own conclusion the fact that a computer program produces a conclusion here it's not a may not be a person in the sense of flesh and blood but it's an entity that gives an analysis that is crucial to whether or not the consumer gets the loan or not how can we just ignore that and say  that doesn't matter it's the same as if it was a piece of paper and somebody was doing some sort of analog analysis of it on paper well because it's no different than judge grader's analysis of another company it's just software it's the same as the the lender is the one who's choosing to use the software if the lender wants to know exactly how it works the lender can use the book if the lender wants the ease of using an automated system lender can choose to use this system but and there are other systems out there that doesn't mean that fannie mae is the entity doing any assembling and evaluating just because it made this tool available and even if it did fannie mae's purpose for doing that doesn't fall within the statute its purpose for doing that is to give lenders a perspective view of whether or not it might purchase the loan and it doesn't matter whether it's before or after the loan is made the private mortgage insurance example from the agencies charged with enforcing this statute is about