neglected to note that your court appointed for mr pitts and we really really thank you for your service not only to him but to us as well we really do appreciate it thank you renfro versus nation star mortgage rest of the real estate settlement procedures act is a consumer protection statute that's designed to protect mortgage borrowers like my clients and the case  arises from a contested mortgage foreclosure and correspondence that my client sent to counsel to nation start back in two thousand and fourteen the issues in this appeal there's really three overarching issues two of them are closely related the st issue is that the nation's stars invitation the district court adopted an interpretation of bonnets that frankly is completely at odds with its plain language do you do you think that's fair so i get that you've got you've got the one kind of zinger line in the letter that uses the word never twice and always wants but the balance of the letter is really about the foreclosure the attachments are really about the foreclosure so it seems to me i mean this is it's not an implausible reading of the letter it's seems to me maybe it's not a perfect reading of the letter maybe the letter was just imperfectly drafted but i mean what are we to do when a lender reasonably plausibly tries to make give it to one of the old college try when they're faced with a letter  well your honor i think that you have to look at the rest of the statute regulatory regime which is why i would argue the st two issues are closely related because if the nation star did subjectively misunderstand the letter when it sent its  response then that should have been made apparent in its st response so what would it have said we misunderstand the letter i mean it get receives a letter it thinks it understands it and it responds to what it thinks it understands the letter to say you know the nd part is just not consistent with what it said error certainly to the notice of error the st letter certainly discusses force placed insurance the only statement in nation stars initial response and in fact the only statement it ever made says with regards to your concerns about force placed insurance the escrow was added due to unpaid taxes the story that the nation star offered at summary judgment and that the district court accepted was that it read a temporal limitation into the st letter however a with regard to that st letter i think you have a stronger argument with regard to your nd letter but the st letter seems to be all about the allegedly due amounts that triggered the foreclosure lawsuit and the judgment in that case as to the st letter let's just deal with the st letter for itself as to that st letter putting aside the affidavit submitted by nations darr why isn't a reasonable objective reading of that letter that you were concerned with force place insurance and other improper financial debits and credits pre foreclosure well for one thing the letter says and it's text it says we do believe that the foreclosure was caused by the force placed insurance but even if it wasn't then charges for force place insurance continued at exacerbate the default that was written in the plain tests and letter so and importantly and i i think this really can't be overlooked at no point in any of its correspondence does nation star ever explain why it believed the th placed insurance did not cause the foreclosure and in fact the record doesn't show that it didn't either it simply became irrelevant years later when the case came up for summary judgment isn't the key i guess to the question that judge jordan are both asking and i'm looking at the letter clearly much if not all of the of the claim to fault is dribbled the charges for th place insurance and judge jordan is asking you yes it was griping about th place insurance but with respect to default and subsequent foreclosure right yes ok so if and that triggered nation star's obligation when it responded if it determined there was no error and no and that the force placed insurance didn't cause the default it was required to provide a statement of the reason or reasons for that determination and that required statement is wholly absent from its response the only statement nation star ever made in it  rest of correspondence about force placed insurance was non responsive and in correct it simply said the reason that the as grow i mean i believe it's incorrect but certainly non responsive the reason for the s the reason why the escrow was added was due to unpaid taxes it doesn't say during the time period in your letter there was no force placed insurance nothing in that response puts the borrower even on notice that nation star read the always and never as actually based on the attachments limiting it to a specific period in two thousand and eight so but i take it you don't dispute that under the statute if the lender makes a reasonable interpretation and responds to what sort of it reasonably understands the letter to say sufficient right good to go if it reasonable interpretations good enough a reasonable interpretation disclosed in its response and as judge jordan points out we did send follow correspondence that said mission star you appear to have misunderstood us we have a concern about force placed insurance and nation stores or response to that was we consider your nd letter to be duplicative and the matter is therefore concluded  now and that that shows why the response requirement that exists in the statute that is discussed in renfro is critical here and ironically there's argument in the briefs that the service or should be required to read the borrower's mind but rest and regulation x say the borrower isn't required to read the servicers mind if the service or determines that no error occurred that's not something we learn about in a deposition years later assuming assuming that we agree with you at least with respect to the  the response we're not in a want to look at this any more because we've already dealt with it what are your damages damages are always tricky in cases like  this and this court has i believe it's the only opinion that really considers the issue and i think the court got it exactly right in the us or i'm sorry in renfro and in renfro the court refuses to distinguish as i read it between the air and damages now granted that was decided at the motion to dismiss stage but renfro as i read it says when an error occurs and the service or denies the air happened it cannot then avoid respa liability by correcting the letter after it does self correcting the air after it does so and that's what happened here because it was undisputed that there were in fact nine thousand dollars in force placed insurance charges that were on the account do you deny that those were refunded the they were not refunded until well into the litigation that's fine no and some and maybe we can talk about mootness or voluntary suspension or something but do you deny that they were refunded when the question is what judge wright asked you which is what is the measure damages generally speaking in a case like this where at least the out of pocket harm has been remedied host litigation well and that is the question they're going for a dozen and so when  refinance when your clients refinanced and i assume they're still in the house is that right it doesn't matter they are and they modify their mortgage so the charges were carried through and so that nine thousand dollars was part of the package the refinance package that correct no there was no refinance they just modify the mortgage so that one thousand dollars was added to their debt and it was ultimately removed from their debt and so they had the pay interest on the  there's true i think that does happen and i think the damages in this case would be nominal as it appeared in two thousand and fourteen you know as as the case developed or we got into discovery and we learned information a lot of the facts became a lot clearer did you raise a claim for a nominal damages measured by interest or otherwise in the district court we didn't specifically raise that did you specifically raise it we cite renfro and we run froze language that a court heard that a service or cannot avoid rest belied billet by correcting the error going forward and that's what we think when from stands wherever it doesn't say what damages would be awarded i would suggest an award of nominal damages something perhaps on the order of interest or even postage bees should be considered because it and that concept is an unknown in the law a nominal damages exists for example very often people in order to defeat a trespas claim would have to bring a lawsuit in order to defeat a effort to establish adverse possession over real estate would have to bring an action for trespass and obtain award of a dollar a common law that the difficulty i think for you procedurally is that everything you just said was available to you in the district court and you didn't make an argument for nominal damages measured by interest or otherwise there so you're asking us really kind of for the st time to craft a nominal damages theory that would then allow you to bootstrap the initial damages theory we didn't we didn't request an awarded damages at the summary judgment stage we argued in response to a nation star's contention that there was no damages that that's not true the damages where the error and run for recognizes that that is in fact damages under this tell the errors the violation but not necessarily the harm monetized harm you can have a violation of a statute you can have a violation of a constitutional but generally you have to show that there's some resulting injury from that violation of rights so here your contention is that nations stars two responses were inadequate didn't satisfy resp and violated rest by correct but the question still remains how are your clients harmed and i guess your answer is they were at least harmed in a nominal way and they're at least entitle to an award of nominal damages if they can prevail at the point the complaint was fired filed they were harmed because they were overcharged more than one thousand right i completely understand that when you filed that when you filed the complaint at least at that point in time you didn't have to worry about nominal damages because your clients in your view were out the forced insurance amounts that's correct right it had been overcharged for them and so if you won you would at least be able to recoup those amounts of money exactly and that's why in order for rescue to accomplish its purpose a mortgage servicer can't be allowed to correct the air and with the damages and with the damages and actually thereby win the case that would just make it impossible for a borrower to really even when they're overcharging this case a substantial amount why doesn't just sort of ordinary mootness doctrine take care of this i mean like you know we have most cases all the time where the defendant after the lawsuit kind of stands down in an effort to avoid litigation or whatever and then we have this big debate about whether same be true of say the st amendment you know i mean but and yet we have a mountainous doctrine that you know sort of allows in certain circumstances cases to die of their own you know sort of accord we also have exceptions to the moon as direct and i'm just i guess i'm just wondering why it is that we're not talking about that instead of renfro and there's something sort of magical about respa well it's for the same reason why we have exceptions to the moon is doctrine it's not and it's not in there's exceptions to every rule and in this case renfro makes the exception because it recognizes that you could not have the consumer protection regime in place if you would allow service or to move every case once it's demonstrated that there is an error that it didn't correct in response to the correspondence by simply eliminating those charges the unique situation under arrest is nations is the mortgage servicer is in complete control over what it charges to the account so it could always protect itself by scalia's world here i guess but i mean so he says look the letter says there is this line in it that says never and always when we yeah and that would be in extreme reading polling language out of context i think is as you pointed out if you read the substance of this letter as a whole which the court did and in a very detailed sixteen page opinion which really picked apart the language of the orders the language of the letters and also the record evidence that was before the court if you read that the substance of that letter is error is you placed us in default and started a foreclosure that you shouldn't have because we made all our payments that's to stop it's a letter you put us in a wrongful foreclosure and the reason that you did that was because you placed lp i wonder placed insurance plate that placement resulted in the misapplication of our regular monthly payments and all of that triggered a default i don't think is any other fair and reasonable way to read those letters it all related to that the preface for all of the lp i error arguments was was the fact that the lp i resulted in the misapplication of those two thousand and eight payments and triggered that the fault and the preface also is as evidenced by the attached documents so in support of their claim for an lp i dare they attach a bunch of documents every one of those documents pertains to the pre foreclosure two thousand a time frame for let's let's take a look at that let's take that as a given right now let's talk about the adequacy of your because your client completely blew over and got wrong their claim about forced placed insurance because the response to the st letter says this about the th place insurance limiting it to what you said should be limited to with regards to your concerns about the forced placed insurance our records indicate that escrow was added to the account to cover delinquent county taxes that's flat out wrong right of the statement is actually flat out correct it is wrong in so far as it does not address the borrowers claim that there was improper force placed insurance that placement is what caused these payments to be misapplied and so the very st part of the letter debunks that it explains in detail your payments were not misapplied at all they were actually all correct and it to choose the documentation were on different planes you and i their letter undenied will maybe not so you tell me what you think about the letter the letter says the st letter says two things we can debate what the things mean but he says two things the st one is we made these two payments right you didn't properly apply them had you properly applied these two payments we wouldn't be in default that's allegation one right yes yes and that's clearly understood yes you think they're wrong about where the placement should have gone but they claim that there were these two payments out there that you didn't deal with correctly yes allegation one yes allegation two whatever you make of it and you were responding to judge new some as to why you think it's limited in time and scope the nd allegation is about th place insurance which is separate then the two misallocated payments right separate but connected in that  resulted in the misapplication of the payments got to the allegation i'll take that ok but your response says nothing because their claim was not just that it led to that but that it was improper because there should never be forced placed insurance given the way that insurance took place at the association your letter says nothing about that part of the letter nothing the letter attaches documents which show that that insurance placement was fully refunded a fact that they had acknowledged in their own letter to us they say there was a placement that was refunded w attach the record i believe i think that some of the refunds took place post letter not with respect to the issues framed by this in two thousand and eight why didn't you tell them that because we attach the records that showed it and explained that it wasn't a creation escrow for a lender placed insurance that caused your payment to fault the issue that you had with the creation of escrow because you didn't pay your taxes here are the documents and records that you can look at and shows you that the insurance placement that you acknowledged had been refunded in fact refunded it's in the pay transaction histories that they sent to us and that we also retransmitted back to them it shows that lender placed insurance was not an issue that impacted their account we provided the documentation that clearly demonstrated that what was the lender help me then what was the credit that was provided post letter post lawsuit as to force place insurance for subsequent years post foreclosure which nations are did not read as being at issue in these notice of error letters after the fact there were refunds for insurance  was placed i believe in twenty one thousand and eleven dollars after the foreclosure and that was done in response to a new notice of error letter where unlike their prior letters they said we are now complaining about insurance placements post foreclosure not two thousand and eight planes that we allege triggered our foreclosure post foreclosure and in response to that those charges were reversed all within actually one was reversed before the letter and one was reversed shortly after the letter all in twenty thousand one hundred and fifty four years ago prior to the filing of the operative rd amended complaint in this action i also just want to note that there's a fallacy here  placed insurance is never appropriate in a case like this because there's a condo association so they procure insurance so we just assume that it's always there that's not my assumption ok make sure that that's that's the allegation understood the letter and it seems to me an allegation that you have a responsibility to respond to in some way shape or form and we responded consistent with their letter which was that any escrow is created for this account were not the result of lender placed insurance they were the result of your failure to pay taxes as these documents reflect and as you acknowledged in your own correspondence to us the lender placed insurance that was placed in i think a may of two thousand and eight and they reiterate that in their follow up letter at the five thousand two hundred dollars some odd placement was reversed and refunded in november of two thousand and eight when you provided us with evidence of the coverage and that evidence of the coverage was actually one of the things that they attached to their correspondence so when you send in your proof of insurance we say ok thank you and we reverse it in refund it and we provided that information to them again this is not supposed to be a gotcha or a trap we respa contemplates which is conduct a reasonable investigation attempt a good faith response addressed the main issue if any were alleging here which was we made all our payments you failed to properly credit them you did it because this lender placed insurance issue and that caused us to go into foreclosure all of which was patently demonstrably false discovery in the case made it clear that they did not make all their payments they have never been able to produce that evidence every payment was reflected in their bank records appeared on the transaction histories that were provided in response to those notice of her request it showed when they were applied what payments they were credited to the thrust of their argument was based on a just a fallacious assumption that if i make a mortgage payment in july whether i've missed three prior months payments i can't be in default for july but that's not how a mortgage works can i ask you an interpretive question certainly that this record considered at least in part the there was no contrary evidence my question could it really hypothetical wanted to in trying to figure out what this letter to you to your clients conveyed right if it's proper to consider the subjective understanding of the recipient is it also proper maybe not in this case maybe because you say there was no contrary evidence in the bar were never saw the letter is it ever appropriate to consider the sender's subjective inten i don't think so and i don't think that the court did that with regard to the nation's stars witness is there a difference between the recipient's understanding and this and there's understanding i think the significance of the testimony of the nation's star witness and what the court relied on were the details of the investigation that was conducted what was reviewed of the fact that the letter was taken and did she testify as to why they limited the inquiry yes the court agreed with her interpretation the court didn't rely on her subjective intent to make that interpretation the court did its own analysis of the plain language of the letters and determined that the only fair and reasonable reading of those was they were confined to the pre foreclosure timeframe the significance of the deposition filed which was filed i think in the in november of two thousand and eight and so i don't think that the court in any way said i'm relying we're travelling on the subjective interpretation of the nation's star witness and even if he had even if you rely just on her testimony again no countervailing testimony once we come in on summary judgment and present evidence that supports our position in view of the case at that point they can't rest on allegations they can't rest on their lawyers conclusory statements about what they intended and meant they have to produce evidence and they did not do that they certainly couldn't produce it from their own clients i believe they both testified we never even read these letters we never saw them were impacted by it but i mean there was jordan's question is is is is the interpretation of the letter fundamentally and the denture a issue or is it an objective question for the court to answer on its own and if it's if it's evidentiary such that your client puts in and you know this is what we thought it meant then i don't know why it wouldn't be good for the goose good for good for the gander the p evidence and here is what we intended and then the court nonetheless says i'm going to construe the thing for myself objectively i believe it's an objective determination of the court to make and i would note this court's decision in bates versus j p morgan chase i know there is substantial reliance appellants on renfro which is a decision made on a motion to dismiss where there's no record development in the only question is whether the the pleading was sufficient and the referee facts are much different because the letter there just said we've determined there is no error and stated no reasons at all for anything but so for our purposes on a going forward basis you know if defendants in the future put in evidence affidavits deposition testimony whatever that says here's what we subjectively understood the letter to mean the district court judge should say fine and all but whatever i think the court can make that if the language is plain on its face and objectively limits and confines the inquiry i don't think it matters just like with a contract if it's clear on its face it doesn't matter what they subjectively believe they meant in addition to which this is not supposed to be a trap for the unwary it's supposed to be a device to exchange information and provide for transparency as you said to give it the old college try we gave it the old college try went above and beyond that which is no in this case that this entire case binding judgment a foreclosure that had already determined that appellant to default didn't fail to make the mortgage payments and they attempted to use the rest but notice your error notice procedure as a nd bite in the apple to take an appeal of that judgement if they fail the time we appeal in the state and basically said state court judge you got it wrong they didn't do what you did we didn't really default we never she was sort of been down that road in this case already right been down there on the case but the only way i just know that the only reason we're down the road in this case is because in a case of no good deed going unpunished we agreed to vacate that judgment and grant them a modification that allowed them to retain their home when we went as as judge scola recognized we were under no legal obligation to even entertain that application we could have thrown i shredder because it was untimely in relation to when the foreclosure sale had been set that's the only reason we're here had we not granted them the modification enabled them to save their homes and what they all acknowledged was a favorable modification where they agreed on what exactly what was and wasn't owing this case would've been over five years ago and i just want to briefly touch on this damage issue this issue of nominal damages was not raised there's a reason this case has been litigated for five years i think the court can assume what it was at because they were claiming actual damages emotional distress all of which fell apart on their depositions when they acknowledged that none of this that happened in two thousand and fourteen because their alleged distress or injuries that they were claiming that nominal damages she was just an ex post attempt to justify something that wasn't presented in the lower court thank you much mr gottlieb you have three minutes and before you start let me ask you a question i know that i know the argument you made about nominal damages generally speaking said their testimony was it to the extent emotional distress was at issue that their emotional distress was caused by foreclosure and there is and i acknowledge there is a distinction between the foreclosure and the air now in this case there the air the foreclosure would have stopped i believe if nations started complied with the rest but the that distinction wasn't appreciated by the borrowers but isn't it i thought that it turned out that your clients were not up to date on their mortgage payments is that isn't that accurate even in discovery even after this case was remanded to the district court there was it was put forward by nation star that there was another default which was not the default discussed in the foreclosure complaint and you know the concerning payments i had literally been made ten years before that had been due ten years before that revelation about these misstatements we were unable to refute that ten years later however the record doesn't establish that the foreclosure would have happened and in fact it isn't a reasonable inference i mean factually my client was told was paying her mortgage cameron diaz cameron long said was paying her mortgage and she was told you can't make any more payments until you pay over one thousand dollars  place insurance and at about that time the foreclosure complaint showed up but mr gottlieb said in response to judge jordan's question when asked where was the explanation about why the what happened to force place insurance where was it he said in the documents well nations the statute doesn't let nations start off that easy the statute says that the mortgage servicer must provide a statement of the reason or reason why no error occurred and as judge wright points out these documents are confusing they don't make a lot of sense to the borrower who is receiving them the burden under this regulatory regime is on the service or to explain itself in the terms presented by the bar when the borrower describes their error that didn't happen here and to judge nuisance point if it did happen if nation star had complied with that obligation that the plain language of the statute puts upon it we wouldn't be worrying about the subjective intention of the letters years later in depositions we would know if  your contention is that your st letter put them on notice that you were disputing every single force placed insurance addition to their account i think it did and more specifically we were pointing out to them there was an erroneous placement of th place insurance it caused the foreclosure we believe that to be the case and not only that there was some force placed insurance credits and all this is seen in the letter however those credits came after the foreclosure was filed there was never an explanation not even in the documents read very broadly as to why that wasn't true so even under nation stars view of the air they never explained why it didn't happen the burden was on them under the statute to explain why that didn't happen they simply didn't do it and as a result even now we are discussing what the subjective intentions behind the letter were however that is a circumstance that flows from their failure to simply disclose the reason or reasons for the determination that what there was no error you know congress in the c f p had the foresight to include that requirement that requirement should have been enforced the overarching error here was that the district court let nations are off the hook as to that requirement right thank you both very much