discovery rule i'm sorry if i could just jump right in i'd like to start the discovery rule there we go defendants argue that because mr pierce was first defrauded in beneficiary and it also lists self as the nominee ok and then years later some assignment at least on the record for murders to a subsequent person the same as actually and that's recorded also right in what year two thousand and eleven than four years before the statute of limitations before you filed so as to those two defendants i'm having a hard time see why you see why the district court was wrong in concluding that your claims are time board sure i think there are three reasons you know first i think it's i don't think you can say that the instant he signed this mortgage which he claims he was fraudulent is to do he was on inquiry notice that there was fraud in mis dealing well he says he was fraud surely induced to do it because he didn't know that they were going to assign it to somebody else later i think that's the claim against first arise that you'd you never told me you were  just you know i wouldn't it's a silly argument but i'll take it at face value i wouldn't a bar of the money from you i would have taken your money if i had known that you were going to assign my life my note to somebody else that is a  ry note that he signed says we may freely assign this to others so i'm trying to figure out why it is that he wasn't on notice when he signed it that it could be assigned to others i think he was on notice th they promised him a lower interest rate as the budget but surely he knew when he signed when they when they sent the notice of default in two thousand and eleven surely he knew he'd been trying to negotiate his lower interest rate over the time period surely he knew by then that is a he had reasonable reason to believe it least that his efforts to get a lower interest rate had failed there was no notice of default in two thousand and eleven and i believe that wasn't filed until two thousand and fifteen two thousand and eleven have the default right he's been trying to renegotiate the interest rate on the loan to conform to what he says we his original understanding right even though the note says fixed rate so tell me why when you get this notice of intent to default you just don't you don't have a reasonable inkling that maybe these guys aren't don't believe the interest rate should be first he was again induced into that default by first horizon after spending his wheels trying to get this modification they told him the only you can modify your rate is if you default on your loan that it was a major factor in him stopping the payments for streisand's own conduct and businesses intend to foreclose you know this is essentially a collections letter intended to c nation star was was the loan servicer right did you quite make any payments to nation star i believe he did i believe he did prior to stopping payments and two thousand and eleven so so he made no payments t it were as if it as if it described an authorized under the law your client your client was in default he had not paid they sent out a notice of foreclosure they may not have been authorized to and of all want to get that second but that doesn't make the notice fraudulent our contention is that this was a conspiracy to commit fraud to basically run out the clock on his statue limitations by dragging him through these mediations and then pulling  into this fence let's let's turn to back in new york mellon there you deal you don't dispute that you've seen the note in this case i do i haven't seen the note well it was produced it's in the record we have a certified copy in the record yes judicially noticed and there's you know it's indorsed in blank and b why am i don't believe that b n y m did have it they produced it in this case well they recorded they produced a copy of a document they recorded no they also produced in the beginning of the case they the judge should take judicial notice of the note and produce the note in court did they not my understanding is no this is missed before we got through any discovery there were no oral arguments and i don't know just whether or arguments they but didn't they actually produce the note to the judge this is what the western district judges have been doing to avoid the show me the note stuff they're saying to the sure borrow bring me a new note didn't they bring in the note i am not aware of that happening on the record i am aware  were you are you aware of the requests to know if you notice which of your education yes and are you aware that among the documents in that requests for judicial notice was the note yes ok so your argument and your argument as i understood it in your in your complaint was that the mellon well one was not the holder of the note because the security taishan trust agreements prevented it from becoming the holder correct  doesn't matter under washington law you agree that the holder of the note is the beneficiary yes the notice of bearer bond because it's indorsed in blank agreed and i didn't understand you to argue below when the district judge didn't understand you don't argue below that mel one didn't actually have physical possession of the note your argument was you may have possession but that doesn't that's not good enough because of the trust agreement because mergers merced could have never held  was not your argument yes i would argue that if they hold that they were not holders in due course entitled to infer and the last thing because your time is up and the other piece of the argument as i understand it is that  this i recognize we can't get emotional damages these need to be to business or property but the court and for his i believe specifically said that these damages can be minimal including for example attorneys are going to have to figure out what it gives somebody else an interest in you're the agent right so i as i understand then the kind of in the technical argument here it's that mergers might have been proper nominee on the deed of trust but it didn't convey it that way odd language is essentially as agent for someone else yet someone else being the no holders so let's assume that mers itself never held the promissory note just for the moment because this record just doesn't allow us to it's a motion to dismiss with some notice of judicial notice of documents does that matter if if the if the promissory note is in the hands of mellon as i read the washington saturates they say if you've got a bear or bond something indorsed in blank in it and you've got it physical possession of it you're the holder of it yes i'm not talking now about priorities of people who may have recorded you with respect to the property is there doesn't seem to be any dispute in this case that mel and holds the note he's his argument is different his argument is because murders was never a proper holder mellen couldn't be one does that matter let's assume or is never that your car or your first client first arise and never gave the note to mirrors it just held it itself indorsed in blank and then later gave it to mellon would that make any difference no it doesn't make any difference and that's that's what i was getting at with can clarifying that the assignment doesn't include any language about the note it's simply you would your colleagues argument about the securitization issue that that wholly apart from hold you know whether or not you were a holder you couldn't be a holder now and could be a holder under it's it that under the trust agreements which are not part of the record that this conveyance to bank of new york to the securitized trust happened in two thousand and eleven which was outside of the allowable time for and that  to washington courts have treated and said that may well be but that's for the people the parties to the trust to fight about that's pretty clear under the other washington courts most of the ninth circuit jurisdictions hold this way as well so address the second  second thing the second argument he makes is that the no was sold into the trust ad or around the time of origination which gave rise to these alleged misrepresentations by first american or first horizon and mergers at the time of origination but i think that's a self defeating argument because if it was if we take these facts it's true that it was sold into the trust at the time of origination that was in august twenty seventh i would you know is what gives notice that to a reasonable person that the melon might now be the holder doesn't establish it but he gives some notice under the recording statue so right somewhere i'm working backwards let's assume he's right i don't read this in this complain but let's assume that's what the complaint says that you you lied to me you transferred it to you to a mellon much earlier than the paper did and then they recorded record says how would he have known back in two thousand and eleven that that happened in in two thousand and eleven yeah that it was transferred into a trust right well i know i know where to have to take that is true feel legit so tell me how he would have known it back then washington courts have held that murders as the beneficiary on the deed of trust gives rise to at least inquiry notice that your loan is in the is going to be part of a securitized trust or part of a not considered viable in washington it's because holder status is what's required and holder status is governed by the u c c and the r c w s and the deeds of trust act specifically requires that the holder that the trustee has to appoint quality services trustee i'm not proceeding against the trustee i'm only proceeding against you is that the way you understand it yes and if if in fact they were the holder of the note then that claim fails now that what's your response to that which is well because it was the holder of that no it doesn't matter what mers was with regard to the  it wasn't in holder correct he alleged that it had no authority because the sloan was improperly security threat judge settles order says i i want to make sure this is accurate he says mr pearce doesn't a i've seen the note and they produced it he doesn't allege that they didn't they didn't have the note he alleges that they didn't legally have it and those are his theories and i dress those theories and reject them had mr pearce allege that i know that you actually had the know what we do in a case like this because the washington courts have sort of said we're we don't require you to show the know but let's assume his allegation had been i know this is stuff is all of record but back in new york now and you just didn't have the know when you author it when you authorised the trustee to notice a foreclosure sale how would that create an issue of fact well that's an issue so if that were alleged in the lower court right and  judge settle says it's not here but i'm asking a question a different question what if that were there were what he alleged what would we have a fact issue we would have a different record for sure there's no record it's a motion brightest what would we have to trust act you have to provide that proof to the trustee so the trustee has to know that they have the authority to act as trust to the deed of trust act as we know from hummel it would be an adequate proof of the note  the trustee if the beneficiary or an agent of the beneficiary had made a declaration that in fact they had to know it's relevant time but we don't have that right it's not part of we're not worried about that here because he's dismissed the trustee from the case  that only goes to the trust that's only goes to a click now what you can't make a c p a claim or d t a claim against the trustee who's been presented with a certificate that's what that's what washington is but we're not worried about the trustee here clear in saying you don't allege that i mean frankly if you want to go back and try that issue then you're going to you know they're going to show up with a declaration that says we physically held the note on this day but did you really allege that in your complaint i read your complaint at least four times and it's these theories they don't legally hold a note because members because of mers etc you don't really allege that they didn't physically hold a