the issue here on a motion to dismiss is not whether the plentiful ultimately prevail although we think under the pleadings it's clear that we should but whether the claim it is entitle to offer evidence to support the claims or as the chording twamley said our pleading just needs to raise a reasonable expectation that discovery will reveal evidence and in a minimum we did that and i think that the felt that you didn't present so efficient direct evidence and you didn't present sufficient pleadings under the mag donald douglas statement to show that you presented a plausible claim and this was your third amended complaint now is this the fourth complaint and all or is this a fifth complaint you've won in state court yes and then you were removed federal court and is that when you started following your medical point i think that's correct i think we did a first  we pled that number one we applied for loans number two we were on government assistance now everyone applied for a loan yes every twelve all twelve plan all out all twelve plaintiffs apply for a loan they filled out a loan example that actually received loans but without their public assistance being considered from one of the two defendants and so it's not always clear because sometimes what i hear one aptly saying for example wells fargo will say well you got your loan through america pro through another lender so you were an applicant to us or for example zachary taylor chargeback now president zachary baylor on the line what about the people who didn't apply because they were discouraged from applying because they were said don't indicate that you're getting public assistance because that will be a negative as far as the long approval itself is concerned and they didn't apply based on the advice of the linda well i think we're all some of those i think those among twelve well i think there were some people that were discouraged but i think all of them ultimately applied for some type of loan and let me just take a step back and see if i can clear up maybe some of the confusion some of them would have called up for example and asked about credit that's how they would typically start off they would call a lender and ask about credit they were why is this what you state in your complaint i've read your complaint well i'm just giving the background well now we don't want your background we want to know exactly what you played in your complaint i played that they all applied for loans and and just so we're clear the discouragement claim was not specifically pled i don't think it needs to be pled because it's just a type of discrimination we alleged not that we were discouraged from ever applying but that we actually applied and didn't get the section eight housing considered we didn't get the public assistance considered and so when it comes to discouragement for example some people might ask about section eight say they're on section eight but we told they could not include that in their application so they they did apply every single one of them did apply it is more than plausible when you apply for a loan and we allege that they all applied we allege that they were all on public assistance so nation i believe some of them did not and i believe some of them did but still did not get it considered i believe that is correct now i say this and here's one of the disadvantages that i have and i'm sorry i didn't know you go ahead off i'll  w up we haven't done any discovery as a whole in this case we were allowed a deposition in state court under rule two a two state procedure a little bit unusual procedure where you get to you know typically take a deposition to investigate claims is a description of the court are deposition i think we were limited to maybe an hour or two and only with respect to one of the plaintiffs and you're not allowed a corporate rep deposition you're not allowed to ask overarching questions and we did that so it's not a coincidence that our most specific alec allegations concerning the one deposition that we did get that lasted all about seventy nine pages that was tina alexander so i believe that they all well i know that they all ply and i believe some of them have been writing in their applications and some of them did not now we have documents with respect to one person team alexander we don't have a single document respect any of the others they have that information and because we haven't gotten to the discovery stage it is very difficult to plead things we don't know about they could be in the file but you did plead yes we absolutely did plead they were applicants and that is in i believe it's in paragraph forty with suspect to all of them but i think it's actually specified with respect to other individual defendants later on for example in paragraph eighty four i know we go continuously through the situation of team alexander and i believe an allegation paragraph ninety five we go through the allegations has claimed exactly baby in fact i think we gave baylor's actual down payment assistance and section eight assistance of five hundred dollars a month and they were just locked off and not considered as part of his his loan and i think common sense judge worland in his opinion at the very start questions why all of these considering but why are all of these twelve plaintiffs in one complaint when we have so many different facts because i think they're all subject to the same policy also which we have specifically pled we've specifically cited we've quoted the  policy in paragraph seventy nine of our complaint now whether it is a jointer problem or not i will leave to the discretion of the district court of course but we played them all that way because they were all subject to the same policy in our judgement and in any of it it is more than plausible given the policy that applies in this corresponding living situation that when the applicants the appellant's here did not have their section eight considered it was because of the policy that they were filling in fact so there was more than just for and whether to follow or not choose to be judged were aligned with iran something you very much dispute in your briefing and that's the problem facie case and whether you had to allege all the elements of it and he you know the language of his opinion he points out to elements of the prime facie case and that alleged in the complaint you cite some authority that really is distinguishing a mcdonnell douglas this work of it i think versus arema out of the supreme court is the best case and i'll quote the case because it's very important it says it says before discovery has unearthed relevant facts and evidence it may be difficult to define the precise given that the prima facia case operates as a flexible evidentiary standard it should not be transposed into a rigid pleading standard for discrimination cases and by the way this is a continuation of the supreme court's teaching all the and it and that in the prima facia test is supposed to be flexible one and we don't really care whether you call direct evidence or circumstantial evidence the real issue is do you have enough evidence nobody really cares where this record is taught they don't really care what it's called that's not in the statute in particularly here we're talking about mortgage determination cases we're talking about law that's being applied from employment discrimination it's really hard to fit it in pigeonhole it into that test especially if it's rigidly applied as we c standard by which you've got to make you case i agree completely and i and i would say how is it not plausible that when somebody goes through the loan process applies for a loan is on section eight has it denied it's tol denied because they don't take section eight i see a policy that confirms what the person testified to in the deposition that they do not take section eight i think that's a little bit more than actually possible i think that's the whole case case standard circuit it's actually very clear on this question the application of the macdonnell from douglas framework on a motion at a motion to dismiss this clear error and this court has recognized that holding as controlling authority in the circuit in the raj case the judge southwick referred to and if i may those it's very clear from the opinion page three three one of the opinion a plaintive need not make out a prima facia case of discrimination in order to cite survivor a rule twenty six motion to dismiss citing circuit unanimous opinion for the court he also talks about direct evidence and says look direct evidence is another way that a plaintive can prove a claim of discrimination so the holding of circuits is about taking these evidently standards and related to its misinterpretations of acoa and regulation b for instance the district court concluded that in order to state a claim of discrimination or a co the plaintiff must plead a hostile statement there is no such requirement under oath and it with that's inconsistent with in the supreme court a particularly for this court is the more the more of the department of agriculture case but i think in my limited time i think the most important case here would be the johnson controls case out of the supreme court where there were no hos statements because the defendant in that case was actually the discriminatory policy in that case was motivated by his stand simply benevolent reasons the employer there wanted to protect its workers so there was no kind of hostile statement nevertheless the court here said hostile statement as is motivated by some sort of hostility but typically where you have a government actor or a corporate actor the question of in a policy's context the notion of hostile statements or animus sometimes doesn't apply as well as opposed to cases where you say have discrimination in employment where you have a possibly innocent explanation there you are looking for hostile statements that would show that innocent explanation of the mere pretense and also your i want to point out the way in which the court failed to look at the limited purposes for which public assistance income can be looked at by a creditor under the statute sixty ninety one be too late those out there three circumstances in the  but then gives them no real effect and simply says well public assistance income can be looked at as a relevant factor that's a plain misreading of a coa is in this reading also of regular nation b where regulation b goes into detail about what sort of what circumstances a creditor can look at public assistance and come to things like the length of time that the income will continue whether or not a dependent will continue to qualify for income and whether or not the asset can be the income can be garnished or attached but what is a categor impact of plaintiff's waiver of the direct evidence issue but before i do that i want to touch on something that you raised judge barksdale which is the lack of plaintiffs to establish standing i don't think there's a person who's read this complaint more than me and i will tell you that they do not allege with respect to six plaintiffs and those plaintiffs are alexis baines bendings hey good henry and roslyn jones that they ever applied for loans now the paragraph the plaintiff's counsellor palance into financing and that matters your honour's because biko would defines the term inquiry as something different than application now plaintiffs have brought their claim under sixteen ninety one he which provides standing only for an aggrieved be that another matter right and there's also the regulation be also defines the inquiry point which is critically important because that's what they allege specifically they did and that's not an actionable thing responding to an inquiry as to what someone could be eligible for well but my point is that was not the basis on which judge were aligned dismissed the complaint well no it's not your honor but i'm hearing so you want to take it up for the first time on appeal well judge it's an issue of standing and it's an issue that was raised below in this court obviously is allowed to affirm for any reason and if it's to find the plaintiffs fail to establish standing that's a basis for firming the dismissal of their claims and if i can quickly just point out that we filed a motion for a more definite statement two times and raise this issue we filed a motion to dismiss once and raise this issue resulting in the operative complaint and they still didn't alleging they clearly know how to allege people applied because they do for the other four with respect to america pro but they didn't allege those six folks applied and i'm reminded of the quantum decision and i may be mispronouncing it but it's a decision of this court a discrimination case and this court said that equally as important as what was pled is what was not played and if there is a fact within the control of the plaintiffs that is so core to their claim that they should be screaming it from the court house roof it's fair to assume that that fact doesn't exist and i can't imagine a more political situation in this where they've had four chances and have been reminded multiple times and they didn't do it but that's only with respect to certain playing that's the six i mentioned your honor now what's interesting about the other four is the other four seem to express the alleging counsel just conceded to the court that they didn't even include their section eight income on their application now if you look at paragraph eighty three they use a very creative language in their complaint and they say that their section eight income was not included for consideration for their fellow africa so they did apply  honor but if they didn't include the income how could we not consider it we can't consider something that's not but that's another reason for this missile being marked from the lack of an application x absolutely your honor and since i only have a few minutes let evidence for determining plausibility ok this court in raj which is a controlling decision and everyone cites to it for their propositions the raj court did say look you don't have to prove a prime aphasia case at the pleading stage but then it went and looked at the mcdonnell douglas elements and said the plaintiff fail to state a plausible cause of action because they hadn't identified other individuals who are similarly situated but not protected that got treated differently that's what treated differently that's what the district court held now i can see the district court held that's a promise facia element and a prime the fish issue but the holding in the outcome is the same and if you think about it that is the foundation of discrimination there must be a contention an argument an allegation in the complaint that someone is being treated differently notwithstanding the fact that their similarly situated just because they're not from a protected class that's what this court held in raj that's what the first you can prove it directly exactly they are arguing that this is that they have proof from direct discrimination and consequently they don't need to refer to mcdonald doctors so you're right your honor and then the more case this court held that if you have direct evidence of discrimination no whites then maybe you don't have to show that other people are being treated differently right because there's that's the that's the the comparative fact if i will the comparative allegation that clearly other people are being treated differently and what do they point to your honor they point to this alleged wells fargo policy now let me point out first that the six plaintiffs identified earlier alexis paine's bendings haygood henry in wasilla in jones they don't allege the wells fargo policy was applied to them now counsel stood up here today and relying upon this policy of wells fargo to say you're playing against it well so i think that's what counsel has told you today and let me tell you that i didn't stand that they were or i might have misunderstood him your honor but my understanding from counsel today was that they're claiming that policy undergirds all of these claims and is the underlying component of all of these claims and core to a discrimination case is the allegation that people are being treated differently right the district court said there is no allegation in the complaint that people are being treated differently plaintiffs have not challenge that c f b hasn't challenge that then the district court said and the direct evidence there were two allegations of direct evidence one was that the pro was not considering their income the court held that was to conclusively that was not a sufficiently pled there were no factual support unlike kendra williams who is the plaintiff who has an appeal this case who has eleven paragraphs of factual allegations unlike some of the other plaintiffs who try to make out when they applied what they were told those folks purport to identify six claims over the course of three years in a single paragraph that says we were all told the same exact thing and the court said that's too conclus plaintiffs don't appeal that that issue is not in their briefs that issue has not been argued by them they have waived that issue reporters just said in the issue that america pro the district court held that the allegation that a mayor pro told them it didn't have an investor to buy their lawn was direct evidence that's one of the arguments that made below the district court held that allegation was too conclusory nowhere in their briefs to plaintiffs argue that instead they keep focusing on this wells fargo policy which doesn't apply to the six people i just mentioned it applies to four at least according to their allegations and that policy though however isn't direct evidence of discrimination because it doesn't have the animus and judge southwick you caught on to this i think i think the over read the concept of animists i think what the judgment below and what the courts have identified of the concept of animists is that the statement itself has to establish the discriminatory intent no white clearly establishes discriminatory intent the fact that or the allegation that there's a policy that someone might not buy a loan down the line does not evidence the discriminatory intent because it doesn't explain in and of itself how that impacts the consumer two of them i think they were they had direct africa and they had their address direct applications and they were participating in that in out of of credit with effect to zero record in the allegations of directly apply to wells fargo if i may defer to tom lewis who represents wells fargo to answer that issue the other ten applicants six of them well i'm sorry have ten appellants six of them don't allege they apply and i address that the other four that alleged a demo on the basis of section eight correct your honor nobody this angle applicant says the reason i didn't get this long was section eight they refused to process a section eight voucher well they all say that right but they don't know ledge the facts to get you there so for six they say they didn't get a loan because they wouldn't consider section eight income but they don't allege they ever actually applied for the loan for the other four they allege i couldn't get the loan i wanted because they wouldn't consider section eight income but i didn't submit my section eight income in my application and they claim that they didn't do it because we told them not to that's what they claim for the i mean is there a single a complaint i did not submit my section i calls america told me not to what more are required to do and the complaint so your honor the issue becomes you have to it boils down to if you were to ask me what's the one missing thing in this complaint it's the comparative fact right and what those four people don't allege is that someone else was treated differently because their their income was included and what they don't allege is that there exists actually a policy income in the application for that to be the case i mean it's like you're saying that if i want to say i was just not allowed to enter a restaurant recalls i was from mexico that i've got to say but they allowed people from lege an established that comparative fact two ways one you can allege that there are similarly situated non protected individuals who are treated differently that's what this court held was missing in raj and dismissed because it have the compared to what was the what was the raj it was it was an employment discrimination case right employment discrimination should not this not this particular statute equal credit opportunity act you're right you're on except plaintiffs are asking the court to apply employment discrimination law to the will credit opportunely uses the word discrimination sure well it's the other component of a judge and what this court didn't more is it's allowed folks to avoid that factual pleading when it's identified a policy that's may please the court my name's tom lisa represent the other police in this case wells fargo i'd like to follow up i think on some comments that you made judge barksdale and i think that has caused some confusion and i think that's caused b by the pleading and even more so in the appellant's brief where they lump all these people together and they treat all helen says if everything is the same to all of them and certainly from wells fargo's purpose perspective there are some significant differences the first judge jolly i think you alluded to ten of the plaintiffs did not apply for loans from wells fargo an applicant is defined in the statute as any person who applies for credit directly or applied to a creditor directly for an consents to wells fargo it's our position that they don't have a case against wells fargo i want to turn now to the different groups of plaintiffs from wells fargo's perspective that have been alleged  and and i think this first group makes it obvious by lumping all of them together doesn't work particularly asked wells fargo four of the plaintiffs stipulated to the dismissal of their claims against falls for that's alexis paine's henry  jones and two of the plaintiffs been ings and haygood all six of those alleged identical allegations in the complaint the same thing for all of them none of those from the other four that inquired about loans from america pro those other four said that their loans were processed using wells fargo solar god six of them didn't even make that allegation but even if they had i want to explain next why that allegation isn't sufficient for those four to stated a claim against wells fargo so four of them in our brief we called them the correspondent appellants i think the plaintiffs i don't recall the correspondence they allege that they applied for loans from america pro that america pro intended to sell those loans to wells fargo and that wells fargo process their loans using wells fargo's that seller god they didn't allege that wells fargo actually purchased any of those loans or was in assignee as to any of those loans but i want to explain why that allegation is insufficient as to wells fargo first the seller guidelines are as alleged in the complaint don't relate to those plaintiffs applications for loans from america as alleged in the complaint and this is clear in paragraph seventy six seventy seven and seventy eight i believe in paragr seventy six plaintiffs allege wells fargo set up guidelines to purchase closed loans the guidelines relate to a transaction in the secondary market where one financial institution is dealing with another financial institution to purchase a close one they alleged in paragraph seventy seven that the guidelines were used by creditors such as miss america to sell close loans to wells fargo there is nothing as alleged in the policy in there called seller g there is nothing alleged that would suggest that the seller relates to how anyone would process an application for credit and so as to those four that did allege their loans were processed using that there's nothing about those guides that relates to their request for credit if they applied from ameriprise those correspondents apply from for loans from america pro they are not applicants as to wells and so the guidelines simply don't address the transaction that is that issue for those four plaintiffs the last group there's four groups the last group is baylor in canada those two did allege that they applied for credit from wells fargo as to those two the allegations in critical respects amount to nothing more than a threadbare recital of an element of the cause of action and what i'm thinking about there is they say public you in public assistance income was not considered on the same basis as their other income that's simply a recitation of what the statute prohibits they didn't plead facts to show that in their circumstances the bank discriminated against them on that basis and i think turning a little bit to house worker with supplies in this case this work which is good law for the proposition that a plaintiff doesn't have to plead case but we have sided in america pro his side a number of cases that say the prime aphasia case or the direct evidence method of proof both inform the question whether a plaintiff has pled plausible facts sufficient plausible facts to state a claim under twamley and and it was in procreate entirely appropriate for the district court to look at the elements of a prime aphasia case were to look at the  allegations through that lens then he has a section on direct evidence in the analyzes the case through that means i don't think to speak to the attorney for the c f p be i don't think he required hostility i think he was merely trying to define what distinguishes direct evidence from circumstantial evidence and so it was appropriate to look at the allegations through those lenses to test whether they stated a plausible claim and we believe you correctly concluded they do not state applause twenty i want to address one comment from counsel for plaintiff he suggested and judge barksdale you commented on this that that it was enough to a minimal bare bones threadbare thing and hope that discovery might lead to something that supports your claim in its work which the court talked about that and and i do think that's work in that context and in that context what the court said is it would be in congress to require a plaintiff to plead facts that they wouldn't necessarily have to prove a trial to prevail and they wouldn't have to prove a prim case if they had direct evidence of discrimination and that's why it's not necessary to do that because he may have direct evidence and what this work which court said about that that i think the twamley court pushed back on is they said that the heightened pleading standard that the second circuit had applied without direct evidence of discrimination at the time of this complaint must play to prove they rejected the argument that you must plead a prime aphasia case of discrimination even though discovery that's not good enough and twamley described one characterization of connally's no set of facts standard as pleading simply a wholly conclusory statement of the claim that would survive a motion to dismiss wherever the pleadings left open the possibility that you might discover something later on and twamley said that was not good enough and it specifically rejected the approach that the court of appeals in that case too which where the court of appeals said the prospect of unearthing direct evidence of a conspiracy sufficient to preclude dismissal was enough even though the complaint didn't allege any any single fact in the context that suggested any agreement in that case it was conspiracy under the antitrust and cheats and so i think family says it's not sufficient i think as i heard counsel argue to plead a barebones complaint with the prospect that discover subsequently lead to discovery of some kind of issue later whole counsel for the appellants also suggested that the complaint alleges that all of the plaintiffs were subject to the same policy the complaint evidence and this may be a better question far the other fabric is there any evidence that a specific loan was denied on the basis of the fact this is baylor and i'm looking at paragraph ninety six plaintiff they are section eight and other public assistance income was not considered by wells fargo on the same basis as nonpublic assistance income for his mortgage application that's what is that what does it mean on the problem is it's a conclusory allegation and so as to those two i would say they've merely stated a conclusion that is a is a reflection of the statement of an element of the cause of action so i was there and there are they were discouraged from putting that owned the application and secondly that there was an allegation that went well spargo did not accept loans based upon section eight income don't believe that they're alleging discrimination and or a color and let me explain to evaluate whether and if i can back up one step i don't i don't know anywhere in the complaint where they allege that an applicant was discouraged i don't think they allege that claim in their complaint but to turn to wells fargo's policy specifically to evaluate whether that policy was a discriminatory policy under a co you need to evaluate it in terms of the specific well pleated facts that these different plaintiffs groups alleged and you have to evaluate it in terms of language of a color and wells fargo's policy concerned a transaction between two financial institutions could and we have the policy we know what they were told we know they were told that pursuant to this policy and that basically america pro intended to use the wells fargo selling guide and four of them did specifically allege that they were that they were going through that system and that they were told they could not use or section eight now that it's some point your evident tripe and that is your evidence of discrimination and none of these i understand is that correct that's essentially it with respect to those four yes your honor and we do have and be remiss if i did say that we do have a policy where you have your line on their discouragement and you're allowed on a policy of wells fargo and none of this really fits into the on because they have these policies doesn't mean that that was a reason they would do not belong well is it and i think at some point common sense has to take over for example if you have a five hundred dollar a month mortgage assistance you are being given five hundred dollars a month from the government that is your public assistance and if america and wells fargo as as has been alleged here at least with respect to for actually six then common sense tells you when i don't get credit for five hundred dollars i am going to suffer a lot of these i know they didn't get credit for five hundred dollars well number one they were told that as like the  entity told her that this was the this was why she wasn't given this long ameriprise that was that was the entity to answer your question that's it and that's the one that applied the wells fargo selling guide because what happens is a mere approach uses wells fargo selling guide because america is going to turn around originate the loan and within twenty four hours ship and sell that paper to wells fargo if you ship that koa does not have application to the secondary market to third talking about when america makes a loan maybe there's something else but that eco is not written in terms that would prevent wells fargo saying we won't buy it you know where i'm headed but let me complete the sentence won't my loan show th that sort of income supporting it i do not accept that and in fact the miller versus countrywide case is specifically applies to that correspondent linda program and the statute itself talks about i think the definition of creditor and i go back to the actual statute which says it is unlawful for any creditor to discriminate with respect to any aspect of the credit transaction with respect to an applicant and they define creditor i anyone who participates in the loan decision not just the originating bank but anyone who participates in the loan because it's a regulation of the bureau or really short form is i believe if you don't it's either in the regulation and now i'm forgetting whether it's in the statute the regulation or both but i'm i don't i know it's in the regulation i know it's cited in in the brief that anybody who participates in the decision is considered a creditor and it's also in the miller versus country by case and sub the very end  they say they involve themselves in the or participate in the crime by simply having that policy even though they had no they had no relation whatsoever with that particular  had no direct participation whatsoever with them or not that you know you're saying that they participated in it because they had a policy with respect to secondary mortgages that they discriminated against that's correct they said were setting aside the two direct africans based on kennerley but yes you're right that is what we're saying because they set a policy for their corresponding with correspondent linda such as their approach use which violates on its face the statute and i'll can conclude with we have alleged that our clients were on section eight we have with respect to all the evidence we could get from our clients we alleged all we absolutely couldn't believe me your honor if if we could have alleged all of them actually effectively support they have very specifically alleged that they went to the creditor asked for a loan mentioned their section eight and were told that there section eight would not apply as a result they did not get the loans they asked for and you know they had set specific we allege that now i don't know how anybody could say i mean we don't know who walks into the bank that's not a public assistance we can't give you a name somebody that didn't walk the walk in the bank without public assistance and got the same loan that they wanted that would be impossible to do that without without discovery but i think we can say commonsense has to take over and common sense i believe decided by the supreme court as one of the events and i say there's a reason i call it common well but i think common sense tells us when you don't get the assistance of a thirty thousand dollars down payment voucher and a five hundred dollars or three hundred dollars per month housing assistance common sense is