the initial issues that i'll address are with the court's order regarding the homeowners bill of rights in particular sections twenty nine twenty three point six c two as a bit of a background the purpose of homeowners  rights was to codified the national mortgage settlements it further was to give borrowers the rights not just against the signatories of that national mortgage settlement but also into two such as s p s that were services but not part of that agreement the purpose of it was protections including premium notice of defaults outreach as well as single point of contact and restricting dual tracking and regards to the cas at hand the issue is whether or not the submission of a notice of acceleration is the equivalent of recording a notice of default in the public record the statute itself does not define what it means by recording it would seem that the recording of the notice of acceleration within the banks file is the equivalent of recording the notice of default in the public record and that's because you have to first accelerate the note in order for there to be a d service not the kind of recording that seems talking about but it's not clear what the legislature was talking about with it so to be clear no it was not recorded in the public record however it was recorded in the borrower's file and was required in order ddition to that issue under the statute and under the case the court should have given leave to him into further alleged causes of action that were relevant to the fact that it was accelerated while they were in review that's that's the point have ruled that simply withdrawing that acceleration notice or drawing the notice of default is not a cure if there were if it was done while the review is in process if it was wrong provision that does have as a prerequisite recording of the notice yes you are but i'm also saying that the courts have allowed leave to amend if they want to say what to allege of to violation of twenty one twenty three point five five which was the outreach issue which that prior to sending this notice of acceleration they were supposed to do certain things in reaching out to the borrower and although they had them under review they failed to do those outreach which was give them a copy of the no give them a copy of the accounting of the of the account during the time s p s was servicing it so it was broader than just the twenty nine twenty three point six e two if the court concluded that reporting within the statute m only recording in the public record there was still a clear cause of action for not having reached out to the borrower that was articulated in the pleadings in the in the first time in the complaint action there is no case law saying that has a private cause of action twenty one twenty twenty one twenty three point five five yes there's multiple cases of that conclude that there is private right of action and i say that cause of action of the again the one that's limited by some case law is twenty nine twenty four asexual topic to so moving on to the wrongful foreclosure claim which is also the twenty nine twenty four a six claim which is all related to whether or not the proper beneficiary under the deed of trust is the entity foreclosing and the issue turns on for the court and many courts whether this is a completed foreclosure or initiated foreclosure that has not yet been concluded and there is  sides this ninth district has seemingly come out on the side of ninth district the north and district of california i was saying the ninth circuit your honor is what i meant to say seemingly does have one case that indicates that  conclusion of the foreclosure you do not have standing however i would suggest to the court that the reasoning in glasgow was so little fight and even over even though that is a post foreclosure case it seems to be the only operative piece that we have as to the california supreme court's interpretation of a borrower's ability to challenge the wrongful nature or the assignment or their ability to collect on the things you know that from a two thousand and sixteen case and one is from excuse me two or three meet post even over opinions at least two maybe more than two from the california court of appeals not reading even over the way or since yes i do believe that am sorry for the confusion there is no california district there is no california court of appeals case that supports the position however the powerful in a supreme court case the only one that addresses this issue plea for closure or post for closure very early very clearly indicates that the borrower does have standing to challenge an assignment and to challenge a foreclosure it seems affable has in the first paragraph of that opinion that we're not talking about a proof foreclosure  right there clear that because this is a post foreclosure kate they have to limit their holding to post foreclosure however how they deal with pre foreclosure cases was indicated by the fact that they sent me back to the lower courts to re evaluate those cases based on why i'm saying there is no can controlling california case and my second question is sort of back to where we started which is if there were a preferred closure cause of action when there have to be somewhere further down the line toward foreclosure than where we are now which is recorded however limiting it to this record your honor even so the notice of accelerations explicitly says on it it's a notice of default under the note it just isn't a recorded notice of the fault the document itself is titled notice  looking for a case to discuss the reach of even over this one is far over to the other side as you could get absolutely honor but the but the logic behind the rash now is no different that the borrower should be at any point able to challenge if this is even the right entity that they're paying to if this is the right entity that collects it is collecting money from them and this isn't some phantom idea even if there was no there is for closure right because this isn't some phantom idea of like the potential for multiple people to try to collect  loan in my practice we see we're third parties companies that aren't even banks that just pretend to be banks will record the trustees deed upon sale there is the potential for them to be paying the wrong party and to be foreclosed on by  their part certainly they should be able to challenge if the right insists he is the one accelerating their note and putting them in a position of the fall in which they can now have a notice that they can now have non judicial foreclosure whereas prior to this instance he claiming a right  or rate there are no there's no potential for them to have a non judicial foreclosure well is there no i don't know this is an area i don't know very well but i mean as if somebody is sending you letters and saying need ten thousand dollars and i say i don't and he says i'm going to do something to you know go to court and say this guy says i am ten thousand dollars he's threatening me i entirely agree that that should be a report for the borrowers but after eight years of doing this is that is not actually in the should try it that way just forget about the just the foreclosure just to wind ordinary you know that chlorination of no contract there is no contract i don't know money now that generally doesn't stop them from being able to continue with  arguments presented by counsel i fear and as we sort of noted in our brief if you're we've strayed from the actual content of the underlying pleading in this case the pellets opening brief and rights in particular the underlying action is premised on a violation of california civil code section twenty nine twenty three point six i think counsel clarified today  contention is that the mere mailing of a default letter in connection with a loan contract violates the dual track and protections under section twenty one twenty three point six as we pointed out in our brief that's simply not consistent with the plain language of the statute the stats are very clearly proscribes the act of recording a notice of default and there simply is no allegation in this lawsuit and i think that's been clarified today let me come back to you first point i don't understand why you're seeing the chain of title i guess if we call it that way that the authority to foreclose question isn't time of origination that there were defects in the loan being securitized those allegations are made in a complaint what we have in the complaint are more passive references to a lack of standing on the part of my client so i portfolio servic and the wrongful foreclosure claim also is tied in part to the dual tracking violation under section twenty nine twenty three point six but even even if we assume for the sake of argument that the complaint alleges that the loan wasn't timely sold to the investor of a securitization trust the ninth circuit has made clear that in those to my previous comment at the end of the day if the allegation is that the bar and the borrowers in this case have standing because the loan was not sold to investment trust in accordance with the pooling and servicing agreement i think the law in the there was just a statement that i think it's a part of the court to realize that section twenty one twenty three point six and the other statute the council referenced twenty one twenty three point five five or both three pealed effective january first of two thousand and eighteen there are no longer act well that is a really complicated question i have another case dealing with that it's a mess as if it was actually extended what it is what actually happened there was another some other statutes passed that are more protective much more protective of scientist and of the plaintiffs and they have different numbers i don't you know whether california really went one would think that these courses of action go away seems extremely unlikely to me although i know there's a california law that seems to say something like that sign in some different circumstances would have to have a whole briefing schedule if we were going to get it that they are very thin so your position is that that that that the causes of action don't exist anymore they've been extinguished that we know before you begin was it your intention to split fifty fifty what was your original intention that was the end times and we have i don't we put five minutes on the clock and you can have a conversation with him afterwards thank you i doubt i know you both look highly competent and somewhat inexperienced the best way to do this is to at the outset say we're trying to say we intend to split time we intend to do a fifty fifty or whatever you intend to do let us know  deal tracking however there are only two paragraphs worth of allegations as to bank of america in this claim that's paragraph three paragraph four they say that country why was the original lender conducted business in santa barbara so really there are no allegations in the complaint supporting the fact that bank of america recorded a notice of default was in any way involved with the foreclosure process or was considering appellants for any loan modification options or there really quickly to address the issues with regards to bank of america i actually would read the complaint to see that the causes of action say against all defendants so it would be that all the allegations are levied against all of the defendants including bank of america fargo ability to one collect the monies do under the know and to foreclose on the property under the deed of trust if wells fargo does not have that authority then when bank of america was a service or seemingly acting on behalf of wells fargo they lack that same a that it had no time once the securitization occurred and wells fargo came in acting as a trustee for the securitized trust was it legal for anyone to collect on their behalf whether that was bank of america back then or that's s p s now where's it say that you mean we're the complete alleges in the awful for closure action against all defendants that they were illegally collecting monies and were either legally trying to for clues and if the court gives me a moment i can point the court to the specific allegation foreclosure action and that's where i was believing that we had also inserted bank of america back so i'll move on from that point and can see that being written may not be held to the same standard as s p s and wells fargo to address the other issue that challenge the issue becomes then you're just assuming that it can be ratified you're saying because it was avoidable loan it can be ratified but there's been no evidence that it was ratified or that that's that we don't  securitization it's not even in the complaint so the only question is whether you should have leave to a man because none of us anywhere well certainly we should be given an opportunity for leave going back to the wrongful foreclosure claim it does say that there was a failure to transfer it through the origination from the the originator to the sponsor to the no no specificity no reason why there was a failure no one section of who the  were nothing we'd be looking for leave to amend to show that we had not yet had the court's order on the original complaint we only received the court's order on the first for me to complain they were never able to address the concerns of the court had in their order