good morning judges of the court please the court my name is charles kind of becker i represent a talent all right if we don't i'd like to reserve a few minutes please there are two important issues before the court today the first is wanted wells fargo do the problem when we look at the complaint your honor and we spelled the satellites they looked to foreclose on the entire property take the entire property and keep the money of the property did this to a very old meets and bounds of course and what they should have done is it should have been wells fargo versus umbria and we don't to the extent that they're trying to take over is interest but instead to complain trying to take the guido's interest as well i wells fargo said all we wanted was stuff from memory but here's the thing the wherefore clause had five sections take the property sell the house take all the money that was from all the defendants i mean there is one house they were actually trailers at the other structures it's a trailer ok will this ok your honor paragraph three of the where four clause if in fact wells fargo had wanted only interest when we look at number three they specifically say in number three we want from the defendant umbria a judge to pay the deficiency now in section three they've on people who have no mortgage with the lender is outrageous i believe that would be true with your best case for the mortgage for your own of what we have is that if we look at the judgment question what bank try to foreclose on the mortgage the cases were then based on the mortgage and the mortgage or saying the bank violated the terms wrongfully foreclosed because they used the wrong terms of the mortgage naming the guido's in the in the context where they did not try to take the home would have been fine but instead you're on when you look at the cause of action for relief if i asked the court just to consider for a moment if the guido's did not hire an attorney to defend them and a default had been entered that's a fault if they had not answered this complaint and one summary judgment that judgment that they saw it would have taken the entire property guido's interest it would have sold the entire property including guido's and it would have taken all the money and given it's wells fargo including the money that belong to the guido's the problem was they didn't do it right they overreached and he tried to take the guido's interest it may be true that that means the mortgage is not very it's not worth very much but that doesn't mean that that that the grito does have a legit claim against wells fargo and i agree and that we don't counsel is correct that there is a lease maybe one sentence in the complain and it's that first part of the work for clause that says the defendant's interest will be foreclosed but every other provision of the complaint in the position that will spark of took in the litigation acknowledges  mortgage others paragraphs two and three of the complaint which say that umbria executed no in the mortgage there is paragraph nine b of the complaint that says that the greed owes or named because there were record owners of the property not personally responsible for the underlying debt but a record owners of the premises securing the mortgage which required them to be joined as defendants in the ensign action the fact is wells fargo never claimed that the grito has had a mortgage was fargo never sought to foreclose their interest in the property there were there two statutes pursuant to which wells fargo did in this case was proper notwithstanding the fact persons who might be in equitably affected by a judgment in the action second statute is in y r p a p l thirteen eleven which specifies necessary defendants in a foreclosure action subsection one says the necessary includes every person having a state interest in possession or otherwise in the property those statutes make a lot of sense in this context because if you consider what would have happened had the not been named they live on the property along with umbria their co tenants with had they not been named and then had on bree's interest been foreclosed then the result would have been that the would have then been co tenants in the property on which in which they reside with a complete stranger so for that reason it was not only necessary but it was appropriate for them to be named for notice purposes and then at the end of the day as judge wesley recognized the property was never foreclosed anyway so they don't have any damages if it was improper to name them which it wasn't then they did what they should have done they retained counsel they made a motion and motion was granted and that situation that occurred is not a tort and it's not a cause of action so i think i interpret countess position now to be kind of limited to two causes of action or at least two categories the first is wrongful foreclosure as just judge broderick recognized in his decision that has never been recognized as a cause of action by any new york court court has ever recognizes cause of action but even if it were maybe a cause of action you will choir first of all an actual foreclosure which didn't happen here the action was discontinued and second of all require some wrongful action by the plaintiff at the be like a exactly i think some kind of fraud at the other example that was referenced in one of the decisions from one nine hundred fifty six said if the defendants had at the bars had paid off the mortgage and the bank sought to foreclose anyway so it would have to be something like that it certainly would involve naming a record owner of the property for notice purposes and then as to the the emotional distress claims again judge broderick's decision was thrown so i won't belabor the point but intentional infliction of emotional distress would require extreme and outrageous conduct i don't waltz fargo's actions in this case were not extremely outrageous in any event that would require special injury which we don't have and haven't even alleged negligent infliction of emotional distress would require first of all a duty to the grito which there wasn't here they had no relationship and again if they are their injuries in this case to their to the extent there were any there they were not a direct result of the action but a consequential result so the situation that they reduce found themselves and is not unsympathetic if you accept the allegations in the complaint is true they believe rightly or wrongly that wells fargo was attempting to take their property even though they knew they didn't have a mortgage so that that's not an unsympathetic position but there are a lot of things that happen in life that can cause someone shrestha or apprehension don't give rise to a cause of action so the did what they should have done they were tain an attorney the action was eventually dismissed as to them they were dismissed from the case and then the entire action it was discontinued altogether so there is no cause of action the judgment should be affirmed unless there are any questions are asked and a banker in a very quickly the complaint did not just name the nominally and i guess the court when you consider this if the guido's did not hire an attorney and defend this case when you look at the damn laws and you look at what wells fargo is looking for you will see that had to quito is not the founded and brought a summary judgment motion they would have lost their home the property would have been sold and wells fargo would have kept the money there is one thing between giving people notice about a proceeding is another one in affirmatively trying to take their property from and don't forget in this case we went to all in the complaint and we went to there we had four proceedings we said let them out released the claims against them they said no we we had a final summary judge they fought the summary judgment your honor they fought it and all the summary judgment asked is let the guido's out of the claim and they fought it now why would they do that if all they wanted was notice in this case they should have been named only nominally they should have been named as a party in interest instead their own prayer for relief asked for the property to be sold and all the money to be paid to wells fargo so when they sold the property and they civil proceedings abuse of process because