she was unable to be present today she's written briefs will confer with her relative to the final disposition and she will review the arguments are the things i cured by th if just is enough for me to hear you are like me have to speak into the microphone thank you for the secondary matter that's before the court today it is court is being asked to consider that when a case is dis facts are correct that the last payment that was me on this note was november of two thousand and ten would it be would be a changing is the default fee you still want the same amount of money you're still the same people how is it different judges at st person or in three months of interest that were not quite well why are you collecting thirty and the flipside of that is that the dismissal of a lawsuit deal is so what happens when a lawsuit a foreclosure action is dismissed the plan of wants to refile again it has to send the notice out saying you're in deep halters and what you owe if you don't pay there's no limitations on money but when they had this same exact transactional fact they are yes they are there are same facts but again i would say that there was nothing on the law that i felt other than prejudice is the only case that in the case and it will say that if my guest did just that these there that these happens defenses so the motions to dismiss foreclosure actions under the single filing rule are sort of a recent vintage they've been or just transfer servicing rights were voluntarily dismissing the cases by have the c r i've seen all of the other things he mentioned it to you got to change it what did you say change of the muslim services here we're in why would that be last nine years for foreclosure all four cases arising out of the exact same set of off the facts well there's one i mean he's alleging there's one that's different and it's their choice because this is a remedies for the lender in that contract or analyzed in that case the acceleration provision is is important it's heed it is an election provision in the contract contract that the lender drafts contract with  homeowner doesn't get to decide whether they cite or not what that celebration provision says that once you falling behind enough on your monthly mortgage payments we don't have to continue to accept partial payments we don't have to continue to accept monthly payments they keep you below the current on the slow so we're going to follow these very specific instructions in this provision in the come contract and if we censure this letter and we follow these instructions and we've properly accelerated we've elected to  ability to voluntarily dismiss a case and then refile either within a year or the statute of limitations whichever greater that's why they got to file their nd case and then they prosecuted that case for a year and then they decided we want to voluntarily dismiss lender that carries pretty forth all of these arguments that are in the breeze for your honour's th all of the out of state arguments from different jurisdictions with different statutes different after the rules different statutes of limitations address the issues raised by ever curious you implied that the failure to respond would be in the negative and the point is i submit to you that lacked and enforce that provision and it doesn't say if you choose to dismiss your case for any reason it is up to you you can dismiss your case and then you can you can refile that's that to me that would be most efficacious for a mortgagee to file a lawsuit if in fact the filing of the lawsuit accelerates or it would then create a situation where the mortgage is terminated so original under any circumstance because based upon the logic it is a given that it is for ever i i i know that that's not the case i represent homeowners all the time who are able to stir that acceleration because they're either able to get a loan modification agreement or they're able to come up with funds to reinstate the loan or they filed bankruptcy where they're able to make payments to contribute towards the loan or they make any payments whatsoever to the point  this is for the creditors benefit this is their ability to enforce the answer in calling the entire debt not solely if they dismiss that action aren't they giving up their right at this time or at that time when there's there's by i don't know any statutory struction or any specific language in the contract that says that's what happens but what does a dismissal mean it means that they're no longer pursuing the cla illinois single refiling which we're dealing with says it doesn't matter why you dismiss your case you took her voluntary dismissal but once you do it more than once it doesn't matter why you voluntarily stress and in this case no one's contesting nothing's changed in nine years nothing's so they've always had the ability they're enforcing the no mortgage which was created by a prior and what if they determined there are no records that they can rely on to incorporate isn't that they are obligation to prove their case and if they can't rely on any records that may be out there they don't have to incorporate them and i don't see any connection between the fact that the plaintiff is the same individual should relate whatsoever to the abilities of the crew because you could be for instance i'm thinking of a workman's comp case where  the person claims they fell off a ladder and they just located their shoulder so badly they can't lift their two pound chihuahua ok and they need workman's comp six months a year two years later that's the operative facts nothing's changed nothing's disturb the deep well that's occurred we were nine years ago counsel also discussed the case  terms of the modification agreement you are now creating a new part of the contract that inherently changes the operative facts that's what this report about and wells fargo bank so even though they filed that nd case  for the proposition that each individual installment payment is its own default but in that case there was a modification agreement it inherently changed the terms you can change the contract brought  and then once that gets voluntarily just mess why not reinstated that before you file a th case why isn't the rd case the violation case are going to be talking about what's what because it's the rather than the address the issue that they then filed for three days two thousand and seventeen and it's still going today this is a case brought in equity and it does not seem  reasonable that a person can not make payments and still possess certain rights to property that secure mortgage to another person how their name mistakes may have been made services may have changed but howard and we stand by and say the bank is not entitled to any i don't know but to be the idea that equity has failed i think there's equitable principles and principle principles in the rules that we're talking about today and that is people people shouldn't have to be sued over and over again plant couldn't get it right well they needed to prove it in the fact that they felt they could not prove it under the date alleged doesn't necessarily mean they couldn't get it hayes so the idea that they didn't have the opportunity to prove up the default that's not true they did have the opportunity this is the thirty year mortgage for you well payments per year just three hundred and mr money i don't want to steal your thunder here but this is a case in equity and there is an equity at both sides how can you keep filing is in what appears to me to be looking you know making a mistake the st three times he litigated for what let's say to have three plus years that you personally bit the bank maybe four years to put this person through legal fees i assume present in the record is why those suits were dismissed and there are myriad reasons why those suits are dismissed in the foreclosure crisis that began in two thousand and eight there was government imposing government imposed sanctions on mortgage lenders and servicers privately imposed sanctions by private investors and were to intervene to work with borrowers save their homes and when those happened cases were routinely dismissed all the time voluntarily dismissed but we don't see any of those here will so we don't know the record as it is silent as to why those actions were dismissed but to assume that to assume even i agree with you that if the if if the plaintiffs were strong the borrower along with  proceeding which isn't a proceeding in the courts or a license it or equity and looking at that i agree that that that was sort of militant in favor of the mortgage or borrow as we have no evidence that that occurred off and if you  but with the with the with the lenders are trying to do that and often times that of that takes place to the bankruptcy proceedings or they all of which require a dismissal of case and it's that dismissal which kind of disrupt this mechanism to work out with powers and i think the court the trial court in the norris decision you know very aptly said found that you know by allowing this to by law in this argument to go forward that the lender only gets this you know returned they say no no we only get one bite of the apple so we have to complete the foreclosure you're going to lose your house we have to put a foreclosure you can't freeze is that really actually what we want to have happen in the lenders ok we cannot work with you anymore because