down to the issue of whether the lower court uses discretion by not giving us an opportunity to go forward with discovery in order to determine whether there was fat irregularities in prejudice in this case  and i think it's pretty clear that all the line of cases make clear that irregularity and prejudice is a question effect now we specifically asked for discovery in this matter in our response to the motion for the defense to finish motion to dismiss in june july of two thousand and fourteen well but all this the judge dismissed the case so we never had an opportunity to fat prove that the irregularity to prejudice and i would point out to the court that typically it would achieve no in march twenty ten that she had the right circular argument of how these lines of cases have gone in the court is rightly stating what is typically the argument with regards to whether the homeowner went forward with the statu argument is one sentence well well judge debbie is the heart of what we were not able to prove that there was irregularities because it becomes a question of fish and all of these cases say how about parts three attack on the same issue which essentially then essentially everything except the first sentence is identical that you well we will address every argument that the the defendant made this matter but if it goes down to the same thing judge that and does that kind of give the lawyer in your position an incentive to appeal to even though the arguments that you've been making over and over may or may not have weight does that provide an incentive because it just keeps your client in the home while you're litigating things you have lost a lot of cases well judge you i mean look what judge as an attorney yes but i will say this if you look at my track record i have an excellent track record with regards to my clients and trying to resolve the case let me tell you exactly how much about resolving the case i'm talking about filing appeals in the that get a firm and you're allowed to file fields that get a permit i'm not saying you're not but it would if you repeatedly sometimes we as judges scratch your head and wonder why repeated appeals that aren't successful get filed and now you're answering the question which is it helps your client to file an appeal even though it's unsuccessful is that true would just let me know i don't think that's just not true that it's helps your client to file an unsuccessful appeal no i don't think that i just said earlier it was helpful to were it because no the judge and ensign they get to stay in real simple if the bank would allow them to have a loan modification and it might be more difficult if there had been a foreclosure and not a redemption within the redemption time which is sort of the standard way you challenge those kinds of things and you wait to the last minute and then file a suit which is what you did here right wait till the two days before the foreclosure redemption period is up that's not true i think my client has it come to me i'm not complaining about that i'm not complaining about what you do i'm just i did make an observation about the nature of how these cases proceed and the nature of how these cases proceed i'm asking you i'm not sure it's relevant to the appeal candidly i'm just asking you a practical question the practical question is it is in your client's interest for you to apply for you to make an appeal on your client's case as they bring it to you and within your property with your within your ability to do it but it is in their interest to file the appeal eat even if the odds of winning are low well as normal in a normal situation i just want to maybe i'm wrong that's why i'm asking you the question in a normal situation you file an appeal where the odds are maybe five percent the lawyer might say well you know you can file this appeal it's not frivolous to do so but it costs a little money and might be a problem you know wanted to just consider not bringing the appeal but in certain kinds of cases and i'm wondering if this is one even if the chances of winning are very low you might they might nonetheless want to make that appeal because of what you said earlier which is that they get to they get to stay in their house longer is that right or wrong i can have filed it with the legal issues notice the legal well that is one issue or one particular element of the statute which is why discovery is so important she knows whether she gathered in which she said she didn't get it that's what she said she didn't get it so so what typically happens is it is after we have discovery then we can work out the nuances of the case and typically to discovery these cases are resolved it's just when you have these particular type of cases when we don't have an opportunity to flush the case out and we're here because we the resolution of this ok here  opportunity for a judicial foreclosure best remedy now you know whether they had it in during the redemption period there's nothing stopping you from talking to the other side and say let's work  they get a phone call from their their bank they get a letter from their bank and they try to work it out and then whether they do or or don't that becomes problematical but what happens in michigan is then you either have the have had an opportunity to make the complaint but most importantly as a as a case is go you have to be given an opportunity to show that there was a red liberty and prejudice in case that's the brian case those that at  castle representing the defendant affably j p morgan chase judge rogers you hit the nail on the head before i came here today i looked and i saw how many cases mr fair alone had in this court from foreclosures it was forty one don't exactly count them but it's a significant number i know because i've been involved in most of them where they are of foreclosure or compete against like this or foreclosure cases in business they are actually in you know what i i would rather not because i have other litigation it just opens a can of worms komi when it's over other court their bank clients are now saying we'll go and unless there's a stay in place pending appeal we're going to try and evict so i handle my appeal and trotter orleans the foreclosure council brings another foreclosure what happened the foreclosure affirmative defenses by the borrower the foreclosure was voided yada yada everything they said in their other lawsuit and darwin or whoever his equivalent counsel is says to the court this case is on appeal to six circuit court of appeals and the district court judge in the foreclosure matter usually then says i'm not going to touch it then so sometimes these cases are stopped and held in their tracks pending appeal because the bank has nothing sometimes they're held in their tracks because a district court in a vacation court doesn't want to do anything and in many of those cases where mr fair was unsuccessful here he filed a certain position i have a full on one page waiver the supreme court that i crank client say it's going to be a few more months before the supreme court says and eventually four three four years later it happens they run out of appeals and they're finally affected but you are hitting the nail on the head your honor that is what happens here and so y i really don't know why i can go on about all the details here with all the issues that are in this case and previous case you have mostly all unpublished the primary issue he brings up here is the loan modification there's a thompson case that stuck at thirteen deaths two two three  involving mr fair where you held the only remedy for a violation of the loan modification statute is to convert the foreclosure into a judicial before it occurs you can't come in after the foreclosure has occurred and ask to undo it to quiet title in your name to set aside a foreclosure which is the remedy always sought by the borrower and sought by miss lucy here can't be done after the foreclosure has taken place you held that  of hopeful yet that you asked for our a large it today because you guys are an issue a published decision that they beat would have a little more weight than the previous unpublished ones but frankly in all honesty we get the same brief time and again there is no attention paid by counsel for circuit now you can't say a foreclosure set aside because of a technical defect under kim yet his brave still cites me time so again it's it if it is an exercise in futility i can go into the specific facts of this case she claims now i didn't get the letter well i thought that our group was abandoned that was the argument below district court found that she got the letter there is nothing in this brief today that says i didn't get the letter nothing to contradict the affidavit saying she got the letter nothing to contradict the effort he has a posting about notice and then she says well in one page you failed to determine if i was eligible in another page she says you erred in finding me not eligible and then the third argument is you failed to send me a letter with calculations explaining why i was denied you don't have to get any of that what happened here was the notice was sent pursuant to the statute there is no proof that a request was made for a loan modification and even if she had made that request there is no law saying she was entitled to a modification and that for not doing that you can undo a foreclosure that occurred and even if there was a rule saying we had to use it we had you have to establish if you're the borrower that you were but it would have been in a better interest to preserve your right in the property had there not been its violation so is she really claiming that if she'd have gotten a letter saying you've been denied she would have been in a better position to redeem as judge her hindmarch noted she could have done for the six months following this and frankly for the years in which they were trying to kind of work something out but could never reach an agreement as to how to resolve this finally as to the claim that the should have been discovery on this judge roger you got that right there's one line in their brief that is not what this case boils down to i was shocked to hear that this morning because there's nothing in the brief about that but of course twelve b six doesn't require discovery if you were to hold that you would undo rule twelve b six no discovery in this case could have changed the fact that she did not show prejudice she did not show that her right to redeem the property was harmed her ability to redeem it was harmed and more importantly she did not know discovery will change the fact that the exclusive remedy in the statute as this case is found time and time again the laundry list of cases i'll just read to you that the only remedy per the statute which by the way has now been revised in abrogated so maybe we will hear this argument much more in a year or two  convert which you just foreclosure before the foreclosure occurs so no discovery would have changed that and i'm sure to go to the supreme court on this one that hopefully any questions parent not ok that means you know there's a couple things i know if three minutes but here's the most important thing at the big picture i want to make sure we get across the court is that we do not want to cheel the effect of litigation with homeowners homeowners losing their home is a very emotional situation and they want advocates who go there and fight for it and if you don't give them an opportunity to do that then they cause other problems in society and people need to be able to c opportunity i'm certain the judge and that's the point i'm making i don't i don't want the crew to say oh we do not want homeowners coming into you have as an attorney you have obligations to and one of your obligations is not to bring false is the case law is evolving and it continues to change the summit case was a prime example that was her case which if you didn't raise it before then you have problems in the future and so as an attorney we have an irregularity and prejudice and that is what we never had an opportunity to do in this case leslie i think i get just a few seconds left if i had an affidavit for all my client not present to those of course you would see affidavits of happy homeowners and that's because i do a very good job of representing my client to getting the results that they want at the end of the day the courts can only go so gain for them as extra time in their own even though they haven't paid their mortgage right now no if you see the affidavit if i had f a davis for you it would be we got to stay in the house there is if they would be because at the end of the day we resolve these cases they are they are no modifications worked out here short sales worked out they are cash for kids worked out there are a number of options that work out if you talk all these cases and you say well which one of these homeowners got actually got a victim  appreciated this court has a procedure pursuant to local rule thirty six by which where the court may provide a room from the bench when the of entered into a residential mortgage agreement with chase to secure five hundred thirty thousand dollars alone she used that loan and also signed a promis note to purchase the house the mortgage was properly read corded and subsequently she default on the mortgage plaintiff has sued the injunction the case was heard by the district court which on the basis of a motion to dismiss under rule twelve  six the district court granted that motion we have reviewed this case thoroughly we have heard oral argument and we have looked at your complaint and we to that end agree with the district court and this case is dismissed pursuant to the district court's opinion and order  confirming this ruling thank you very much and the curtain call the next case