reported and verified false information for three different reasons first the bank admits that it made quote minor adjustments to the jensens accounts in response to the final instruct in response to the final dispute made minor adjustments to the account because it was reporting in acronym for mission second the bank reported and verified internally contradictory information it reported different information to each of the three national credit bureaus and it reported different information for mr jensen and for mrs jensen on the same joint account also false information three the bank reported false information because multiple bank employees instructed the jensens to make partial payments other bank employees multiple bank employees advised the jensens that making these partial payments would not adversely affect their credit that any missed payments or partial payments would be appended to the end of the loan and that i'm interested in what you think what we are your clients understanding what is the record show about a pending payments to the end of the loan with a beer twenty years of interest so your honor the jensens were confused and concerned so they actually called the bank directly and asked for guidance and they spoke with two bank employees a man named byron and his supervisor named ginny who confirmed over the phone that the way they read the documents was consistent with the way the first bank employee had explained the doc and where in the documents i don't i mean i understand your argument that there's some sort of parole agreement about the documents but when i read the  full amount does not stop the bank from pursuing any remedies so it seems to me that what these documents together say is you for a couple months they'll take less than the full amount and then they can record when i look at the note it has or didn't have the normal provision that says we can accept less than the full amount that doesn't give up our remit he's now i think that t p p does give up their remedies to for accepting less than the full amount for those three months but me i'm assuming now that there actually were these statements by the bank employees about how they interpreted the document but my question is can can those interpretations vary the language of the documents i'm a bit flomax with my documents for some reason my my response is that if i could find the cite in the record there was language in the documents that were sent to the johnsons that suggested that these an explanation from the bank and that was the source of that was the reason mr jensen contacted the bank again just to confirm that his understanding was consistent with what he was reading and was consistent with what with what the first had told him over the telephone let me let me ask you a question that will divert you a little bit from the document issue as i understand it the amount of dispute initially was relatively trivial it was just slightly over a thousand dollars that's right judge and so why or what i mean this is ends up this metastasizes into a horrible brouhaha i mean i have to say i don't understand why this is why this is a sensible place for this to end up over your client insisting that he didn't have to pay ten thousand thousand dollars and tell twenty years down the road and i pulled into my question judge her which is question well if you wait to pay ten thousand dollars for twenty years there's going to be interest on that amount i just don't understand your client's behavior that he did it should turn into this long lasting dispute and then federal lawsuit over one thousand dollars the source of the confusion was discrepan unvarying communications from the bank the chances were see even demands for payments as low as one thousand dollars that's what the initial demand for payment was a thousand dollars the jensens did not dispute that they owed it the only question was when they were going to have to pay it and they go through this long long back and forth with the bank over not whether they owe one thousand dollars but when they have to pay a thousand dollars i have to say i don't understand the behavior no i understand your  honor and i think the reason was it was just confusing what was the exact amount they were supposed to pay because as you well it was confusing about the amount they had to pay it would have seemed to me the sensible thing to do is ok well let me pay you one thousand dollars or whatever it is that thousand and seventy i late it was further down the road but at the outset it was a thousand and seventy dollars that's correct after the first man was a thousand dollars and then it would go up and then all go down and some and they received letters that said your current on your loan and so it was very confusing and then following along conversations with the bank employees mr johnson would repeat repeatedly ask just for an explanation of what do i owe and why do i owe it and there was never a good answer or a clear answer suggests that payments will be added to the end you know that is what i had in mind i was trying to cross reference with my brief to find the specific language maybe i'm missing it but i don't find anything in that document that suggested payment it what it does say is at the end he passed two payments at the end of the trial period including unpaid interest it cetera shall be added to your mortgage loan balance and then the next paragraph says that  so again that is the section that i'm looking at your honor and i think that the specific sense that helps the jensens is if you fulfill the terms of the trial period we will waive all unpaid late charges at the end of the trial period well but those are late charges those are not that they did waive on paid late charges for the nobody ever nobody challenge charges i understand it charge late charges for that three months they said you were in the years of the principle balance an interest that wasn't paid in those three months right eventually the way of late charges but the way charges were imposed after the after the money wasn't paid and time right at the end of three months is judge your indicated quite the bank demanded in effect the reduced portion of the mortgage loan over that time period they did they just kept it a lower amount than amount on the loan and they said we want now want the balance for those three months right correct and they didn't charge didn't say we want the balance and late charges they said we just want the balance right and over time when your clients didn't pay it they had it later arduous they did but that again was inconsistent with well well now it says we will we won't charge you a charges for the reduced amount that you paid during this time period but they didn't say if you refused to pay at their hafter we will pay you late charges somewhere else in this document do you do  support for your position side and during that period you can organize your documents in a way that will be most effective in terms of the use of your time i appreciate that judge thank you damage just standards are and that's basically us things primary argument in this case is the jensens want to focus on all kinds of stuff the thing did or didn't do but we have to look at all of those events in the context of what the chris says and and the documents show that an error was made and the late reporting extended back into the trial plan there is no evidence in the record that any late reporting was it was made during that trial plan period before those disputes were made no i understand but at some point there was there was incorrect reporting made correct that's what the documents show us documents show about and as i understand the district court decision the district judge said well there was a lot of accurate reporting in there was a lot of you know there was a little bit of inaccurate reporting and they couldn't have been damaged by that is that your position that is my position why is not a jury question well i think there has to be evidence for the jury to reach that conclusion in the evidence that we have a record indicates that if you have a sixteen month period of delinquency that is accurate and we're disputing over adding a month or two to that to make it a seventeen or eighteen month delinquency period there cannot be any damages and the evidence that ins in the record on that is from two creditors that the jensens approached one of them saying we're not going to give you any credit with any lates and the other one saying if you've got more than two months we're not giving credit what they're suing for emotional distress in this case they're not suing for lost o issue i think we've still got to have evidence for the jury to make a decision and the district judge struggled with this a little bit and you can see that and her oral decision about so if i'm going to say that that sixteen month delinquency period was accurate and there's no basis for recovering damages on that issue and we're only talking about this couple of month add on how am i going to tell the jury that you can only consider this information because of course the jensens are going to want to put on a larger body of proof to give context to the jury of what this whole story was but they're not going to be allowed to consider the vast majority of time that would be talked about so how do you tell the jury that the other thing is there has to be evidence in the record for a jury to make a decision it can't be guesswork and it's simply implausible i mean the only evidence that we have from the jensens are their declarations saying that they were mad at the bank over this whole dispute not that they were mad at the bank over the small additional couple of months and they didn't want anything there's i think it's in the record i think you know the answer but i want to make sure clear on was first reported the credit reporting agencies were they already delinquent correct so there was inaccurate hoard but the inaccurate port one made was inaccurate only with respect to the length of the lincoln city rather than the fact of the delinquency they were delinquent when the former report was first made and i want to make sure i'm understanding your question about so the timing we're talking about when in accurate reporting for that extended back into the trial months yes that happened after the dispute was made after which for mr johnson was after they had cured their deficiency for mrs johnson was a couple of months before they cured their deficiency but we're well year into this dispute before or that so what i so what i'm trying to exclude from my consideration is the possibility that the credit reporting agencies were reporting delinquencies before they ever became delinquent but i gather they were delinquent it this way so actually they were delinquent so let's go back to the documents and see if you can help me with the documents i guess my best reading of the documents is they don't specifically deal with the situation is that fair i think that's not fair ok so you could tell me  from the questioning that you had to my co counsel or my opposing counsel is that there are there is clearly a widget in the trial document that says that if you don't get a permit modification your original loan documents will control also says that we're not waiving our right to collect your original loan payments by giving you this small respite of time to make a smaller loan payment so that we can figure out whether you qualify for permanent relief that stated several times and there were not waiving the long contract unless we give you a modification and they didn't get a modification and you didn't get them out of prison so tell i guess my question is this is the isn't it consistent with these documents i'm not sure it's consistent with your opponent's position but isn't it consistent with the documents that you just had the unpaid amount of the loan balance and amortize it over the course of the next of the rest of the there is nothing in the documents that say that that let's just get it gets added to the unpaid loan balance what does that mean so how has it been treated it was so i would normally think if i had it and i'm out added my mortgage loan balance it would get amortized over the course of the mortgage loan yeah and so that paragraph we've explained in our briefing tells the jensens what to expect if you get a permanent modification if you get a permanent modification we're going to look at your sloan status we're going to see if there's any in that there are any arrears under the original contract that you're under for your loan we will add that to the back end of your loan or will add that to the loan balance we'll recalculate it will give you a new payment amount and a new loan term and that makes more sense perhaps in the more common context when this comes up when a borrower is already in arrears when they apply for modification relief more often than not that's what happens the borrowers are ready a few thousand ten twenty thousand dollars behind they can't get caught up so they need a lo modification and this provision tells them that if they're granted that kind of relief this is how we cure the problem that you're in so you don't think so and you're reading past due amounts doesn't deal with the reduction  trial period it deals with past do amounts before the trial period began i think it covers the reductions from the trial plan if you're granted a modification because this whole thing it's titled new principle balance for the new loan if you get a modification we're ok i think in the last few minutes that i have i want to point out to the court also that i mean i think we when on the issue of they were denied a loan modification and as a result when they were told that they were denied which they were and they were also told within you know a short period i want to say less than two weeks after that they got a letter from the bank saying here's the thousand and seventy four dollars that you owe to bring current and please do that by this time and if you don't here's the consequences there w fees and there will be late reporting they knew all that there's also evidence in the record from mr johnson's testimony deposition that he understood that and he understood where that thousand and seventy four dollars came from how that was calculated so i think i think the bank wins on that issue but even issue and there's an explanation for that although it doesn't matter for today's purposes because we're under ficca and under figaro the duties that the bank has to address credit reporting issues are not triggered until they get a notice of dispute from a credit reporting agency so that there was communications between the jensens and the banks directly immediately after the failed modification all the way through the course of this the story of this case doesn't matter for purposes o larger set of facts what we're under the fair credit reporting act and one circuit case law is very clear that those duties aren't triggered until we get a notice from a credit reporting agency and so by the time the notice comes from a credit reporting agency with with regard to mr johnson all of that history with the bank is over and has been for several months because he they cured their deficiency in april two thousand and eleven he makes his first dispute with a credit reporting agency in december of two thousand and the report at that time t been incorrect let's assume for a moment that you made incorrect reports the credit agencies your position that once they asked these guys had already paid the amount and therefore it doesn't matter whether reports were correct or incorrect reported that i suppose there is an argument that if it had been inaccurate and we addressed that made the investigation responded back and said no we're not changing it and we were wrong about that that they might have the ability to say from that point forward your honor the document that you discussed in the section of the r one seventy eight is the section that we think is at best a veg i mean that is the reason why in this johnson called to confirm and that's what how do you deal with your opponents argument which i think is pretty good that this is a document that's meant to explain what happens if you get there the modification what happens if you don't well if that's counsel's explanation then reasonable minds can differ but that shows that there is ambiguity that is why the jensens my mind mr jensen called back and that's why the unrefuted testimony is that the bank employees confirmed the way he read it is the way they read it so that allows extrinsic evidence and we've never heard any testimony from fire and hard ginnie or the bank telephone operators to say no i didn't say that can you respond to counsel's west argument which right i'm not sure i do understand before she made today that the banks obligations are triggered by the request from the credit agency and that at that point the bank said there's no deficiency well the bank did made whether or not the previous information was correct or incorrect the bank said any deficiency has been cured right i don't think the gorman case gets them off the hook they don't voice liability simply by responding and on the facts of this case even their witness said admitted in deposition that the maximum number of months that the bank thought that they were in arrears on reflection was fifteen months so the bank report is the response should have been it's been cured but it was a deficiency wasn't as long as you reported to me absolutely and once count there was an email in the record from mr johnson to the bank saying we're making progress because they had cleaned up the first two or three months that should not have been reported delinquent but but in any case even under the bank's assessment the maximum number of late months was fifteen not eighteen or sixteen as the bank reported and verified to the credit bureaus they were well that's a jury question again it comes back to i want to point out that in addition to the t p p modification which may or may not be subject to the role of an instant analysis there was a separate low loan modification with the employee jackie that doesn't have the similar language or or letters or anything like that just a an oral representation that you qualify and if you do these steps then you will qualify for a modification and we'll clear your credit so that was a separate modification attempt that also failed briefly if i may just to address the damages issue i have on this record i think that the court cannot find or the district court could not find that as a matter of law there were no damages it may be that it is an incremental subset of the full measure of damages but jensen's put on competent evidence of their emotional distress damages they showed that they had been denied credit because of derogatory and we contend false reporting and it is for the jury to decide which amount is recoverable under which claims means q one other question we said now is it your position that let's assume that the bank is right that these amounts were owed at the end of the trial period if that's true was there any false reporting yes there was there was the reporting relating of the at the trial period yes that occurred at the end before that was there any false reporting if the amount was owed if the amount was so there was also a credit report they reflected a late payment at the very end the bank acknowledged was not late may have two thousand and eleven so