believe it's fourteen c f r one hundred and twenty point one six that rule says that you can't get a spouse or guarantee the rule prohibits the s b a from acquiring a spouse a guaranteed well what happened in a requires you to to to pledge your property s b a requires you to sign a spell so guarantee and say that's just that's just not right and that's what brings us here today because you have we have a situation where the federal law and  federal regulations specifically said the s b a is prohibited from acquiring a spouse a guarantee and this is in writing in an e mail and very clear this is a very clear factors the bank said no no no the s b a requires you to have a spouse a guarantee so what this case is about is it's a fraud case where a man was was tricked and his wife were tricked into pledging the wife's property when that was in violation of federal law so so we believe on those facts we should we should be allowed to go to trial and we believe that the district court was in error in dismissing those claims because and the facts are very clear that when at the last minute you know mr od just who's a small businessman he's starting a business he goes into the bank and the last minute the banker calls and emails and says you know bring your bring your wife and because she has to sign because s b a requires or pleasure property and we believe that the bank believe that it is ms odum had had assets and did that is just to get her assets now from the courts perspective it's important to understand the policy behind that that federal regulation ultimately there are some statistics that indicate that regulation that has a sound policy behind it so when the s b a does the opposite of that in a bank does the opposite of that they undermine the policy of protecting families so so for those reasons  district court judge will be reversed and it's also important to understand that a lot of the defenses asserted in this case by the bank and by the s b a are are without without would argue no because we i would argue that the administrators remedies have been exhausted what your b general mean well i think the i think you have procedural jurisdictional i think that procedural would mean that it's a procedure that's normally followed through the s b a but with their procedures not perfectly followed it doesn't it doesn't undercut the court's ability to  that letter and they responded so so here we would argue what dealt with issues have to match in other words you can't say ok i shouldn't have to pay because x and then when you get to district court say that forget   in her letter did just that it gave a gave i don't i don't have to pay but she didn't this don't you have to a specific reasons to exhaust i would argue that you have to give them general notice and general not administrative agency that there should be be sufficient in other words there's always an issue of how specific you have to be and i think i think that if you give them general notice of the claim in the nature of it that should be should be sufficient but that particularly true in a case like this where the s b a in their letter they never told her about the option to a hearing that the letter didn't i mean davidge person on the street is not of the ministry of law expert so the agency share some burden in a case like this when you look at the correspondence it's clear that in the that she may reasonably responded to the to the agency's request and made a good faith effort to exhaust administrative reviews for example the letter from the s b a doesn't say if you want to hearing a hearing and was not aren't ringin they can tell me if i'm wrong on this was not already in with their army here which is that the individual claims were not sufficiently identified and here on the argument is we're not going to now another another another point i would like to point out is on the banks argument to get to that quickly they're going to argue ok their main argument is the statute of limitations has run in other words were were serving a fraud claim and other things and their argument is did the statute run so you can assert it on the bank's argument i would point the court to two things one under the discovery rule you can make an argument that she didn't realize this loan the planet didn't realize  analysis alone was in violation of the law until a later date so that's when that's when these the wrongdoing was discovered and therefore into this government the statute of limitations is waived but there's another argument that's even even more concrete it would be inherently undiscovered for her the time because the bank suitor on those claims and she had no reason to believe that there was s b a regulation out there that would prohibit this loan from being made in other words the banks when did she st found out when she st dawned on her that it was illegal it would be after i started representing her and recent research the law that would have been around i think around probably march of twenty eight thousand dollars or so sometime around there and i ask you a question about your illegality theory see if you and i understand your your argument about the text on the personal guarantees paragraph in one hundred and twenty point one six but the umbrella that leads into that paragraph says the following requirements are normally required by s b a for all business loans normally required so is there a case anywhere in the country that is said that can make as a matter of law the s p s decision in policy of protecting families as i think it would be clear that it would be unlawful and the s b s argument is that i guess an analogy would be this if say a child has taken a cell phone to school and the parents says you can't use your cell phone at all here and any time you're in school and then a teacher says well you can use your cell phone during the lunch hour the child uses the cell phone at lunch the child still violating the parents rule or not listen to the parent even if even if the teacher said you can use it use it at lunch and i think i sixteen you read that text itself i think it's pretty clear that it's prohibiting a spell security and i think the best evidence of that normally right in the thing that we said in many cases that if the agency problem gets regulation we will hold them  it and we're not going to let them back off on a case by case basis because if they want to speak with the force of law in the code of federal regulations will hold them to it but what they promise gated through presumably notice and comment in this code provision says these are the normal requirements and so it's not obvious to me how you could then come up with a theory that that would make it on lawful or make it legal as a matter of law any particular decision about any particular personal guarantee well i think the best evidence that indicates that it would be be unlawful is when the something so i think that's that's good evidence that it was a mandatory prohibition because when the trump administration wanted change that they specifically rewrote it and i would also argue that from a texan his point of view you know just because the word normally  necessary certainly suggest that it's discretionary when read in light of light of this statute as a whole so in other words i am aware that language but the way i read it is when it comes to that part around sped the  read it to be a mandatory prohibition on it and i think if you are the text that are going to be somewhat ambiguous i think when you when you read the text in light of the policy of protecting families i think you can come to the conclusion that it is a strict prohibition and to allow the s b a to to to do otherwise in this case would essentially be able to allow them to prom again one set of rules and then not follow their own set of rules and if we're going to do that then we essentially have a have a lawless situation if they're going to put something in the  regulations and they need to follow it not put in the code and then say oh we can make an exception whenever we want so so i would urge and again we outlined this in detail in the breeze but for the reasons stated in the briefs and the points a reason to protect both the court and the defendant from cases being tried on missing evidence the fact is that nobody can say what happened fourteen years ago when the when the plaintiff went into the bank to sign the guarantee that's why the district court st dismisses claims against the bank based on limitations holding that the claims accrued in two thousand and six and that the plane of having pleaded any facts justifying a cruel the district court also dismissed the claims because even if we knew it happened in two thousand and six and even if it happened exactly as the plane of claimed that wasn't wrongful the regulations in the s o p s give the s b a in the bank discretion to require guarantees there's another problem here which is standing the plaintiff seems to have me abandoned the argument that she has standing to bring the deck actions against the bank she doesn't argue that in her reply brief as to the damages claim her only argument on causation is that the banks sell sale of the guarantee to the as it was wrongful in plaintiffs put a voluntary lien on their property to obtain that as a loan limitations accrued the court said that the plaintiff could have at that time brought the claims that they were bringing later the same is true here as soon as the guarantee was placed on her property in two thousand and six arms i'm sorry as soon as she said i'm going into that with the plane and could have brought a claim asserting exactly this and claim she brings here from out in dec actions and all the same so that means that her claims accrued in two thousand and six when was the st demand soon in two thousand and twelve she's claimed that that extends the limitations period but two thousand and twelve was after limitations had already expired so it doesn't revive the claims that were already that were already expired and then  diligence it's not a should have discovered it's a could have discovered standard and of course the regulation in the s o p s were available to the plaintiff in two thousand and six when she signed the guarantee and there's not a different standard fraudulent concealment doesn't apply either that requires her to prove that the bank actually knew a wrong occurred had an intent to disclosure to conceal the wrong and then actually took action and she hasn't alleged any facts in two thousand and six that the bank took to conceal the wrong so that means that her claims accrued in two thousand and six and expired long ago likely like i said earlier in two thousand and nine to be plaintiff company defaulted on  she could have looked at that point to see what her obligations were under the hearing t because she knew that it might be exercised on by the bank so that was another time in which she could have exercised a reasonable diligence to the two one thousand and twelve dollars lawsuit also cuts against her or her argument on limitations in that lawsuit she responded saying illegality but importantly she didn't counter claim she didn't counter claim for fraud or negligent misrepresentation all the claims that she's asserting here and so when the bank dismissed at the lawsuit her or her defens illegality went away if she had counterclaim that would have stopped limitations from continuing trying with the comment that limitation is already expired by that point so her next argument is that the get the sale of the guarantee to the a was quote wrongful in secret there's there's a couple problems of it aren't st of all she didn't argue that below she didn't argue it in the opening brief to this court so i believe that it's waived she never said that she didn't know about the sale of the loan or that it was wrongful asked her to come sign a loan application not a guarantee and we know that the bank can require officers of the company to guarantee a loan that's according to twelve c the c f r one thousand and two dollars which is cited in the bank's brief of course the bank has has the ability to require an officer of a company to guarantee a loan the regulation does say that the s b a will quote normally not require personal though they're in t's from those owning less than five percent and just to be clear the especially because they specifically say at your discretion you can require other appropriate individuals to guarantee a level that s o p's say that the bank in the s b a should work together to determine who should guarantee the loan and gives as an example  management persons and importantly it says were guard list of stock up stock ownership so that's what happened here plaintiff wasn't signing as a spouse she was signing as a director and officer of the company under plans construction being a spouse would outweigh any other will that you have a company which is just not what the regulations say in addition the s o p is also allowed where legal and appropriate quote you may require the guarantee of a spouse so even if she had been required to sign in her capacity as a spouse that would here would not have gotten the loan if the plaintiff hadn't signed the guarantee the bank gave the plaintiff spouse's company a lot of money and then had to sell it as being for significantly less the bank is the one who lost money here and and and we doesn't change the other language in the regulation in as opie and it was eleven years after the get into assigned the regulations as appease gave the bank in as big a discretion before she signed it after she signed it including to this day and it please the court brian stoltz on behalf of the small business administration the s b a i'd like to st sort of the overall framework of the status of the claims against the s b a there were two statutory claims that were brought against the s b a under the federal debt collection practices act and the equal credit opportunity act those claims were dismissed by the district court and on appeal there's been no argument about the dismissal of those claims so i think the court can can simply that any challenge based on those claims has been waived them on appeal and so the district court's judgment as to those statutory claims should be affirmed the remaining claims are a kind of a group of theories that i think can be characterize as attempting to attack or undermine the validity of the guarantee and judge southwick you asked about the exhaustion off the exhaustion issue and how that was raised below i do think that the s b a appropriately raised the exhaustion issue process obtain a final decision from the agency and then use the administrative procedure act to seek judicial review of that age of that decision if you're a statute that requires not yes well yes there's a couple different to offset they have to give internally and of course the reason it's clear we don't want people coming to court immediately the day they get a notice that says the government might offset it it may be a mistake we cannot we need a process for the agency to work through this to figure out if it's done correctly i can understand why the s b a would want that questions a little bit different which is is there a statute that requires a plaintiff to exhaust in ministry to flee remedies in this context and i don't think three thousand seven hundred and sixteen dollars does it do we have another one i don't in a question and answer format it explains what rights do i have if the s b a is going to offset and says well you can you can do this if you want to have a hearing you can do it within fifteen days now there's no statute that specifically says to this context that this is the exhaustion process and you have to do it and that is why we do not argue that this exhaustion requirement is a jurisdictional requirement because it's not something like the federal tort claims act where the statute expressly establishes the exhaustion well we have here is a situation where the  dispute procedures that we see all the time i'm thinking in particular the social security administration and when they issue a letter like the s b a did they will often say here are the things you must do under section four of five g and four a five h before you can go to court you cetera in so i understand how that those things look but obviously the statute doesn't say that ms oldham has to do that one hundred and forty point three does it doesn't say she has to do it says she can and if you want to hear the things that are available to you so it strikes me that the only argument that the s b a would have for requiring administrative exhaustion would be some federal common law acting under taylor i think i think it's a little bit more than that i will point out that the the notice that the s b a sent her which can be found it page five hundred and eighty seven dollars in the record specifically says if you believe that this debt cannot legally legally be collected you must send a written documentation to us so there is there was language telling her that she must and you're correct though under in the taylor case i think it is instructive because in taylor if you go back and look at involved a privacy act issue and actual regulations and taylor basically said it was all written in terms of what the agency needed to do and so it said upon request upon your receipt of a request of the privacy act agency does z there was no language in those regulations saying you know the claimant must exhaust a claim it is a do this it was all over and in terms of this is the process from the perspective what the agency should be none the less this court in taylor said that that process was made available and because that process was available the plaintiff was obliged to to use it before coming into court and for all the reasons that the court identified it we want the agencies to have the st shot at this to develop the factual record record you know apply their expertise to correct errors if errors have been made to conserve the courts or raise the court's resources and i understand that with respect to federal claims what would be the best case for the idea that we should jurors potentially through federal exhaustion requirement as to state all claims i'm not familiar with one so i think that there is a i guess i disagree with the notion that it's a state law claim in that sense because what's really going on here is plaintiff is attempting to challenge a decision of the government to do this offset and so they have theories of why they're challenging that are sort of rooted in state law but it's inherently a federal claim and for example it page two hundred and forty four dollars to forty five  the of the record in the district court we cited an a p a case called paula t l a d which is an example of how this essentially should be done you know if you're disputing this you work with the agency you tell them why presented with any of these claims about why the guarantee was it was illegal supposedly or why the guarantee was not allowed the f b i never had the opportunity to consider any of that in their decision and so there is no final decision how can you say that the agency was human ever toad maybe or maybe not that that was something she needed to do so just where we factually did you argue you whoever was doing this and just court that she needed to identify exactly what was wrong and she hadn't done there is no exhaustion requirement because it's not jurisdictional it's not a federal tort claims act claim and then they said and we also sent this other letter and addressed other issues under the rules of the district court judge cummings we didn't have an opportunity he doesn't allow require essentially that was the end of the matter what i would say though is we didn't waive it because we certainly pointed out to the district court there needs to be a decision from the agency on these issues for you to review it that's that's why  it's been a labyrinth on here but i think the substance of that argument was presented in the district court and again on waiver again i don't think we've waived it because this was presented to the district court but i will also say that counsel did not argue you know on appeal in any of the briefs that we've somehow weigh this issue and so i know there's actually court cases that say if you think something's waived you can actually waive your waiver argument i don't think the court needs to get into that but i would say here they've never asserted that it was waived what they've done it they've attacked it on the merits essentially they've said it's not jurisdictional which we we are in accord on that issue and they've also said we sent this other letter but such so that's the way we're i would also add that on the merits you know these arguments fail for all the same reasons the bank said and that's an appellate brief so those are those are some cases directly on point and i'd also point out that judge cummings doesn't allow oral argument or at least in our case we were never given a chance to argue to him so every argument that was made to the district court judge it's part of the record and and i'm quite certain that the s b a did weigh this because the argument they made in their brief to the district court judge was that essentially ms odum didn't request a hearing and because she didn't request a hearing case administrate remains were not exhausted and now course they come before this court and they've got a whole list of things she should have done in a question all this information they should have told told them but i'm quite certain if you review their their pleadings it will indicate that they did that they're just of their argument was she didn't exhaust administrate remedies because she didn't request a hearing and that was the nature of it so i would argue that they did in fact or this court can can certainly conclude a on several occasions trying to work this out so it seems that the s b a certainly had adequate notice of whatever ghost whatever they put in their letters we can look at and tell us what she said here's the reasons why you should not be recouping speaking of the district court level another issue that i had litigating this case is the fact that you know u s attorney's office still the record for a long time didn't give us access to the record claiming privacy and sensitive information and of course there was really nothing sensitive in that record you know that it's that has been unsealed and there were a few i guess low numbers or maybe social security numbers that could have been redacted but i believe that's a further reason to send this case back down to the district court to be further litigated because when we were this in the district court level we were doing it with a silver record and weren't weren't given access to that record and again they believe that the government abused the authority to sell a record to gain an unfair advantage in the in the litigation but really what this is about as you gut you know a man who started a small business in a bank that said his wife had to sign off on the note when in fact she did not in fact i would argue the rule was exactly the opposite so this is not a case where someone's trying to to get out of a or are trying to raise it to come up with creative artists get on this is a serious case where their bank officer said in writing both of you are required to sign the guarantee and that's not the case so so at the very least this case should  be the judgment should reverse and it should be sent back to the district court where we can at least do some discovery before more dispositive motions or follow that this case was was prematurely dismissed and finally i would point out that the case be continued in the district court i thank you very much for your time that would include arguments in front of th