eyes not at cause i understand you are but i believe the the forms are submitted in advance of the closing such that the lender has made the certification i don't think there's any dispute that the certification  be charging them properties they would not have done you know they would have issues of the loan guarantees that's the sort of evidence that escobar says would be relevant would be strong evidence against materiality is that if if the agency knew about the fraud before the v a there's not a shred of evidence in the record that the v a ever issued a loan guarantee while knowing that there were in permissible fees being charged or well knowing that the length of their certification that it was not going to charge those although and this is clear from the just a court's decision is frustrating with what the v a get after the fact in other words when there were sort of allegations of fraud being made to this case allegations generally about the properties being  the payment or in this sense again i understand that i just don't understand where all of this attaches and the best place we can look to find out the mechanics of step by that the court cites london basically saying that look at the v a had been aware of the fraud at the time it wouldn't have issued a guarantee that substantial evidence of the sort that escobar says you know suggests that the thing is  only thing the district and there's other things as well the very fact that these are not only expressed conditions of payment but that the v a actually makes you make and express certification distinguishes this case from escobar it brings it out of the realm of the plot certification to express certification and that's sort of like the gold standard for materiality an agency that's the way an agency says this is something that's really important to us we're going to make you actually make and express representation about this thing so it's sort of a it please the court my name is rob schneider not represent the appellant's i'm going to try not to cover the same ground mr scarborough but just cars i think i have an answer to your question it's the mechanics the way that this program works in certain lenders were granted happens after the closing they would then submit paperwork to the v a in order to obtain the guarantee that paperwork did not include the hud one the v a was never given the hud one unless during its routine audit it asked mortgage investors to provide the paperwork so there was no review by the prior to issuance of the guarantee of anything other than express certification by mortgage investors that  had not charged allowable b they relied on the lenders to tell the truth so there was no point prior to the issuance of the guarantee which we totally agree is the materiality question here there was no point prior to the issuance of the guarantee that the v a ever saw a lender charging an allowable fees it was only occasionally at some point down the road during a routine audit that they would catch lenders charging  portion of the loans are the wonder would get a request from the v a and said you close x loans during the last sixty days we want ten percent paperwork with respect to ten percent of those lines so there's an initial round of audit happened soon after the long closes but after the guarantee is issued and then the v a would also do periodic every other year type audit is where they would go to mortgage investors and they would say bring us two hundred dollars files specific files we want to look at them  between the lender and the borrower it is not a document that has anything to do with the lenders request the v a guaranteed allow them all the hud one is it's a closing statement if you have a closure mortgage you sit down at the table and you have a list of charges you have to go through and both parties sign it it's a private party document between the lender and the borrower but it's proof of what these lenders were doing and it is the main evidence in the record that mortgage investors negotiated with its settlement agents to reduce the fees that were paid by mortgages that were required to be paid by mortgage investors like the closing for me while at the same time increasing the fees paid by the veteran like title  you take a normally the lender is supposed to pay the closing to in these loans so they take a five hundred dollars closing to the mortgage investors as opposed to pay that what they would do is they would reduce that fee to about fifty dollars and they would take a title search of the which would be about  reality i think also it's important to note the posture of this ruling this is a summary judgment ruling in a multi factor test like this it's improper for the court when there's evidence that supports a number of the factors in finding that  became aware of non compliance with the with the program and after that the administration did not see ever caught lenders charging an allowable fee in disclosing it on the face of the which the v a s official testified they viewed to be an innocent oversight they didn't see that as fraud they did have knowledge of the related allegations going on the methodology didn't work and there's a lot of technical reasons why the related believed the changed audit didn't catch its behavior but the v a did in fact take action and escobar does not require that a v a upon learning of allegations of fraud seek to do bar the defendant from the program and this is this is a big federal agency with a lot of stakeholders and a lot of discretion as to how to enforce its regulations the v a showed through its enforcement actions always ordering a refund when it caught an innocent violation routine office to try to catch the behavior the circular the additional audit all of those things plus the fact that this is an express certification case are evidence in support of materiality summary judgment it's not appropriate for it was appropriate for the district court or for this panel to say it's impossible to find materiality here there's also disputed issue as to when in fact the a knew exactly what the relations were alleging they knew the allegations generally of the cases filed it wasn't until mid two thousand and fifteen when the relator provided the v a with a list of the loans that they said these are the specific loans that are that are as the payments the payments that were made on these loans had to be made because it's undisputed every single mortgage investor's loan was transferred to a rd party and under the v a s regulations that made the guarantee incontestable thank you so that the v a continued to make payments doesn't have anything to do and carry out in this case because the payments had to be made quickly before my time runs out i just want to touch very briefly on the standing issue that we raised in our in our appeal as well that's a question of whether the relator said standing to a certain fraudulent transfer claim we believe this is a very simple question the relator is have a contingent right payment because they're entitled to share in the proceeds of this lawsuit under the uniform fraudulent transfer act is adopted by georgia contingent right the payment makes a person a creditor under the statute and a creditor has standing to assert a claim enterprise financial case that we cited in our papers it's clear on that the district court got sidetracked by the gramont agency case for why agencies and supreme court case has nothing to do  with whether a relate or has standing under the fraudulent transfer act to assert a claim and in fact justice going in that case said that congress can define new legal rights which in turn will confer standing which is exactly what happened here it wasn't congress it was the georgia legislature when it adopted the uniform fraudulent transfer act and said that a person with a contingent disputed not reduced to judgment claim for payment has standing to bring a claim on of the fraudulent transfers a nd the argument goes well when can i ask one quick question about the standing if you before we break so you know you say that the this record got sidetracked by vermont but vermont  interest in the a f c a claim might not be enough to do it absent the assignment to georgia uniform fraudulent transfer acts as even if you have a contingent interest payment then you do have standing to assert the claim so i don't agency did not answer the question of whether the relator is contingent interest in the lawsuit is sufficient to confer standing under a separate statute which expressly allows contingent rights the payment to be asserted the basically your position is that even mit and william edwards the parties have litigated this case for over seven years develop a vast record and the district court carefully reviewed the record and concluded that no reasonable juror could time that and demanding materiality standard which is not a four factor test there is very strong evidence that noncompliance with the added she regulation was not material because the v a acting with full knowledge of or later is fraud allegations audited m i c loans that issue identified an allowable fees and continued to honor the guarantees anyway this is some can i ask your question you  the phrase you used there was there is very strong evidence and that may be true but the burden you have is to show that no reasonable jury could conclude otherwise and i guess your phrasing to me sort of that they were demanding refunds that too is relevant but then the district court says but the sheer weight of the evidence is against materiality therefore summary judgment that sort of strikes me as precisely  the sort of thing the district court should not be doing in summary judgment so your honor i don't think that the judge was weighing the evidence by any means i think she was looking and following the framework set up  matters and the test for materiality is rigorous and demanding and the alleged fraud have to be material to the government payment decision and escobar instructed course that to determine it's material you can look to things like quote very strong evidence that it's not material if the agency in this case the v a paid continued to pay on  fee violations were the most d common deficiency and when i looked at their testimony was that they thought those were innocent oversights they required refund and that had they known that these were that this was did with follow the framework set out by justice thomas that said materiality is rigorous and demanding a look at whether or not the government paid a type of claim or a particular cl back to an initial question that was asked of the government in paragraph fifty of the complaint the relator states that when the loan is closed the lender sends a copy of the hud form to the v a and the lender that it hadn't been certified to comply our knowing that it was a law that i don't i don't see that let me put it this  to the issuance of the care with all due respect i think the question is whether it was material to the payment not to the issue when because the question is whether it's material to the government's payment with everything they've got is that your position i don't i don't think my position is is quite that extreme my position is in this case the evidence on the record and you don't have to acknowledge right that that this was in fact a condition of payment yes correct your ok so check the nd thing that escobar says is if the government paid a particular claim in full despite actual knowledge certain requirements were violated that very strong evidence that it wasn't material but i don't think that you've been able to point to a particular claim in response that the government paid actual knowledge of a violation you might be able to get a particular type of claim maybe in response to the judge carnes you couldn't point him to a specific loan for a specific claim but maybe you can get to type a point and i'm still not frankly sure that you can get all the way to actual knowledge that requirements were violated as opposed to allegations but it just seems to me earlier you said and the question i asked you said there is no evidence of the true reality that just i don't think that is right i mean the condition of payment carry the day and that just doesn't strike me as somebody judgement decision making two points and thank you and i apologize if i didn't answer the prior question that certainly was not my my intent there are examples of specific and it is but i'm relying on justice thomas and escobar saying that for materiality it's rigorous and demanding and the f d a should not apply to just any old violation of a regulation and that the most compelling evidence is the action that the government took in terms of payment when they knew and if you look at the actions in the record the v a the v a s actions indicate that they did not so i think with regard to materiality i don't believe i do believe judge totenberg did a thorough review of the case law and properly apply the standard laid escobar and i think she should be affirmed because of the compelling evidence and the deference given to the v a and the compelling evidence is as defined by the that the v a consider the regulation you're not material and there are examples of regulations that they did consider material there's no evidence of that there is no evidence that the v a ever made a payment to a originating lender with actual knowledge that on a level to be had been charged the only evidence what the v a knew during the course of this case they knew a little bit about the related allegations they also knew that occasionally lenders were charging on allowable fees and were disclosing those fees on the face of the they viewed those violations they did not have actual knowledge that the lenders were engaging in the conduct that the relator is alleged which was bundling on allowable c into allowable teams for the express purpose of evading detection any of these at issue mortgage investors like that and on wealthy has been charged and not refunded in fact the refund policy is strong evidence of materiality even when the v a caught lenders engaging in innocent correct payments in this situation are totally irrelevant it is one hundred percent undisputed that none of these mit loans the claims on these loans were not submitted by m i c there's not a single loan in this case from mit received the bank there is no such that there is no evidence that the v a ever paid any loan to any lender with knowledge that they had charge on allowable the only evidence that they ever knew that any on a level these were charged when they would catch the for in london testified as only to hypotheticals and not to any particular action that took place he only spoke about hypothetical veterans administration action you was speculate a little as to what the v a might do if they had ever had actual knowledge but they both denied actual knowledge and if you look in our papers it's our opening brief the twelve to sixteen and the reply brief eighteen and nineteen there are there's a long list of all the things that the v a didn't know about how boards investors was engaging in this process and they never knew for jeff one there was never any actual knowledge on any particular loan that there was