case very similar issues there is a slightly different issue in this one though that bears study and that is that two of the three plaintiffs had land court property and one of the things that louth are held which is what we call regular system property in hawaii but we also have the torrens land court registration system about twenty five or thirty percent of the properties seem to be recorded under that one that's chapter five zero one and chapter five one section one one six expressly requires that assignments of the mortgage be recorded and so that's what they do they have to do that you cannot i know for one of the things is that you can't judicially foreclose without on the land court property without an assignment of the mortgage you can't go to land court and waive the noted around or say i got the note under the u c c so we have two properties that fall into a situation where land court assignments were registered and they were false new century did not have a single thing in two thousand and nine nothing left what about the standing issue with respect  to not having standing with respect to the challenge of the assignment well i have two comments about that the first one is again this is the point i was making earlier in the lother case that the there's a great distinction between challenging the assa norris right to a sign and the ass and he's right to recede and all of the cases that have focused on the latter one said well that's merely voidable because it deals with the terms of the p s a and it's between the two of them and if the house and or nasa you're ok with you as a third party it's just a ball between them so you have no standing in contract law but we're making a different point very different point where saying if the ass nor has nothing to assign that is a void assignment and every case now has held that you do have standing to challenge it what assignment so that's you w the no indeed a trust because she is neither a party to nor beneficiary of the assignment and transfer many many cases hold up but they're all in the context of them challenging say that the track the simon violated some aspect of the receiving parties the assamese trust i am not sure and without having read brody i don't know if it raises the point that we raise a very few cases have addressed this point did the ass in or have something to assign when they made the assignment and these mortgages were signed before the bankruptcy correct the assignments that they recorded in land court to effect these foreclosures were after the bankruptcy and after the liquidation so but one point i'd like to make a little bit different this whole idea of standing you can have standing to challenge an assignment it's not the same and i believe we cite  case called bergman it's not the same a standing to bring a huge gap claim to bring an unfair and deceptive act claim in other words this is again the problem the district judges in this in this district do all the time just what i asked you about yes second that's a chart of part of the overall you'd out there all tied together this is a system in a scheme by which the banks acquire the property for themselves we make the allegation and we show that they get the property ninety eight percent of the time and the reason that they want this false assignment in the record is they know they're going to have to flip this and they want to a provenance and it's too troublesome and inconvenient to show the tr so they make one up is that an unfair and deceptive practice the only standing that i need for making an unfair and deceptive active claim is that i'm a consumer and i'm injured that's it there's nothing about g e was it void or merely voidable it's a separate analysis and in fact we cited case i think we cited it in all of these but in i believe we cited in this case the per permit life case from the carefully examined to see if they are consistent with the policy they were trying to implement in the act and why has laid out its policy of protecting consumers from unfair and deceptive practices so the question is work consumers harmed because the bank is using as an integral part of its scheme to acquire their property was using a piece of paper that no one lawyer is going to get up here and tell you was true it wasn't true new century had nothing it had given it or sold it all the way years before so it was a false piece of paper and this is a it's a difficult thing for courts to accept because it calls into question the whole foreclosure scheme and i don't want to be here crusading for everyone in the country i'm just fighting right now for these three plaintiffs but they clearly had a false piece of paper put in the record and then used to take their property and i think the question of whether that's unfair and the question of whether it cause harm or jury questions and i should not have to be here on a rule twelve b six months i'd like to reserve the rest of my time by you know question they please the court thomas peterson on behalf of the trustee this case is much like to allow their case and i haven't had the benefit of hearing that argument but before i get too far we have here again the same situation you had allowed or there's there's two things that are before you the first is the first amended complaint that's what was dismissed this second is as a proposed second amended complaint as to which the court denied leave to amend so as to that the question is really whether or not there was an abuse of discretion as to that and i think what i'd like to start there if i may because in the earlier argument both judge nelson and judge mckeon had some questions that i think are equally  that now this and the question is whether there was an abuse of discretion in denying leave to amend and the amendment proposed adding a cause of action based upon this quit claim deed issue and that you can't find in this case a basis to conclude that there was any abuse of discretion in injecting that into the case for several reasons first as judge gilmore noted the case had already been pending for more than a year at the time this amendment issue arose and also notably the plaintiff was given one opportunity to amend as of right second mr bickford was counsel in this case that another panel of this court recently reversed which has such a claim in it and he know about the claim he knew about it from the inception of this case he put it could have put it in this case and not only did he not put it in this case but he affirmatively told judge gilmore th this case had nothing to do with such a claim and if you look at supplemental excerpts of record one forty seven to one forty eight there was a proposal before the district cord to  send this case the lisa case over to judge moore way who had pending the lima case on the theory they were related it would make sense to all be in one place and mr bickford vigorously resisted telling the court quote action relates to the improper marketing methods used to advertise foreclosure auctions such as the false advertisement that the sales would be by quitclaim convenience conveyance by contrast the lisa action has nothing to do with procedures followed at the option so how could you say the court abused its discretion in excluding such in declining to allow an amendment in such a case and i would finally point out in our supplemental authority letter that we submitted to you on monday one of the points we we one of the things we've drawn to your attention is that in that that lima case which is in the district court mr big for its clients or class members so so why in the world that you know if they want to pursue a claim with respect to this foreclosure i'm sorry the process of foreclosure something having to do with whether there is arguably a quid claim issue that they might they might be able to pursue their already plaintiffs in the courts so there's no reason at all why what revitalise this case is let in that i think also goes to judgment against question there's really nothing for you to certif hawaii supreme court in this case because you have if we agree that there is no abuse of discretion on the second amendment complaint i think that's right though i think there's some other factors you could take into account as well i mean you know one one this wells fargo case that you talked about earlier you're aware there of those cases have these claims they're back in the district court in hawaii district courts can certify questions if they think it's worthwhile i don't think this court needs to do that so let me then double back over to the to this issue with respect to the first amended complaint and again i think it's very important to have to focus on what was the theory of the first amended complaint and the place to look i think that brings it through totally clearly is first in defining the elements of that cause of action in paragraph seven of the first amended complaint the class is defined by references to people as to whom there were these conveyances after the appointment of the liquidating trustee of new century on august one two thousand and eight that's how the classed as defined next look at what the charging allegations are and all of the claims drive off of the charging allegations which are going to find in paragraph forty four and those are prefaced by the following statement all of these foreclosures involve the use of the unauthorized improper  unfair and deceptive assignment of new sentry notes and mortgages after eight one zero eight so in response to that allegation using f c c documents and i heard in the earlier argument a suggestion that those don't come in for their truth that's just false based on the ninth circuit's decision called daniels which we cited to you the court can take judicial notice of them they were they were they were taken judicial notice of here without objection in that case as you consider them for truth justice when there's a documented issue like a note and it goes in the record you can take judicial notice of that as well so here what we have is a situation where those assignments assign and made the plaintiffs therefore object on that basis answer no they don't have a right to object they don't have standing to object because they're not a party to these assignments this court in the turn of the case decided four months ago published opinion we pointed out to you in our supplemental authorities letter that again this court under california law recognizes that there is no standing to challenge these sort of conveyances that have to do with a with a this whole bit the no standing cases because there is no standing for a third party to challenge the improper assignment and his argument as i heard it is this is not that case we're saying that if you have an assignment that's a void ab initio then there is third party standing so would you address his point and his claim that he's making a different argument than these other cases are addressed or i think there's two aspects to what he's saying let me start with the way to have an issue these cases roger turner the hawaii supreme court's decision in matters which will be in a judicial foreclosure case also says no standing to challenge these kind of intermediate transactions those are characterizing these transfers as voidable here and we offered you the all the bankruptcy authority which shows that even if you thought that the liquidating trustee didn't approve of this transfer as to which there's all sorts of evidence we put in the record judicially no noticeable of how it was approved it would be no more than avoidable transaction so so we don't fall into that void category at all your honor so therefore the standing point is a valid one i think his other point that he's trying to make is somehow you analyze the u d a p differently but but that doesn't fly because what does the u d a p require do you d a p requires either deception or it requires unfairness well there's nothing about these documents which have no bearing on the legitimacy of the foreclosure process they're not required as you heard in the earlier allow their argument you don't have to record this you don't need these assignments the record here establishes that the trustee as to each of these trusts acquired the right to enforce going back to the date of formation of the trust which was won't be for any bankruptcy moreover this is a belt and suspenders kind of case because what you also have in this record you have copies of the notes themselves the notes which have on the blank on the indorsements which under the u c c mean as the holder of the note you have the absolute right to fork looked close on it a proposition the hawaii supreme court confirm for you a few months ago in the radius taurus case which mr bickford wrote you about and we noted in our supplemental authorities letter as well so this had nothing to do with the ability of the bank to foreclose and you know going back to the whole you d a p point it's interesting to my way of thinking it apart from the lack of any kind of deception or confused confusion or any kind of unfairness what's the third prong materiality what is material about this from the point of view of the ability to foreclose on the property when the record here conclusively establishes t the trustee had that right any time the argument that the acid or had no nothing to his son and therefore the transactions boy would seem to me to have some  dity if there were someone else out there who could go after and force the that there was some other entity i think that that's not the case you know i your honor and i'm glad you brought that up because that was where i was planning to close frankly is just point out you know i judge gilmore she was interesting she talked about this question of standing in the context of a lawsuit where all the foreclosure has already taken place i mean she kind of didn't try to deal with the question of suppose you had that unusual case where a plaintive does in fact come in and demonstrate that you know tom peterson is trying to foreclose on my property and has no business doing it there's plenty of remedies to deal with that the met askey scarve out the void transfer scenario but but what we don't want to do is the nontraditional foreclosure is supposed to be speedy and efficient and what we don't want to do is gum it up with requirements that are not in the code in circumstances where there is no competing claim and there's no suggestion the money hasn't gone to the right place there's this is just an effort to delay and if i may just respond to one more thing and i poet yes but my friend started out by suggesting that there is some recording requirement with respect to the property here and i just wanted to draw your attention to each other s five a one cash pardon me which is what he when he drew to your attention and if you read the first two sentences of it it makes clear that you can assign by by any means that's lawfully sufficient for that purpose in the record ation is just what record ation often serves to which is to give notice and that's confirmed by the white court of appeal decision the intermediate court's decision in the markham case will thank you thank you i'd like to start with the amendment i find this sort of illustrates the problem that we had in the cigarette case i was asked well you wanted to just you know take your chances on appeal in lisa we went ahead and took the court's invitation and didn't fare any better it reminds me of alice in wonderland where you get jam yesterday in jam tomorrow jam today i'm not suggesting that this is the same as the case before because the timing is different and what your colleague has said here is that you were more than a year into the litigation and that early it said that this case meaning lies it doesn't have anything to do with lima which is the other case raising the quick claim deed issues so he would suggest it was a situation of your own making that you made some choices there and i would appreciate your response to that as well as the timeliness issue well again you have to look at the record all that happened there was a motion to remap and which which added many months and three rounds of supplemental briefing requested by the court on the motion to remain so what this is this quickly the thing didn't just sort of come out of the sky but it had been basically did not understand or accept the false assignment theory that we've propounded in this case in conferring with the client i explained to them they had other claims and they would like to bring them and so we brought them at the pleading stage it is not our fault that this process i mean all we ever did was follow motion for email and we had one complaint that we amended ours over right to clarify the main claim that we were asserting when the judge says i don't like that claim what else  have we proffered another claim which i knew them to have no discovery had started no scheduling conference it happened nothing happened but we have these in ordinate delays where you've defended files a motion it's three or four months or five months out for the hearing then at the hearing the judge says well i'd like supplemental briefing on something that schedule goes on for two or three months then she waits a month or two to issue a so this may sound like a long time but it really isn't it's at the earliest possible stage of the case so i would also suggest that there's an abuse of discretion because all of these judges were infected by the lima case believe my case has been thoroughly rejected in the contour case the why supreme court came right out and said lehman was wrongly decided we disagree with judge mol way there is a duty there isn't there is an obligation on the bank to behave a certain way now all these other judges  both cigarette and in this case were citing lehman saying well we don't buy the quick claim anyway and it's late but it wasn't late and de lima was wrongly decided so if a judge has wrong ideas in their head are they really exercising their discretion i don't think so i'm having there's there's no suggestion here in all this briefing that somehow the judge has the wrong idea and her head i don't think that she cited to the lima case  right part of her and that was a limb is just a wrong idea there's nothing correct in lima i would like i know i have a dozen i guess it doesn't matter whether it's correct or incorrect the question here really is what was the issue because whether it's correct or incorrect will get well i'm i'm just elated on appeal judge whether someone is abusing their discretion you have to ask what legal standards did they have in their mind as what the law was if they were wrong on that it's a very difficult to say that they weren't abusing their discretion if that played a role in their