deed of trust the second issue is bank of new york mellon is wrong in this matter the third issue is the procedural error by the lower court and the fourth issue is mergers business model starting off with the first issue the ninth circuit has clearly stated that murder's is an agent of the lender that support is found in serve on taste versus countrywide loans home loans  incorporated merce kamma for closing its own name because it's an agent of the lender forward slash beneficiary and can only do so under the direction of its principal merz does not essentially merce's role is it's a beneficiary as a nominee it's acting mirza's acting as an agent scuse me as an agent acting as a beneficiary it is not the actual beneficiary because it's not entitled to payments that's the business model argument that you have and yes it is not perhaps the most transparent way of conducting business there's nothing illegal about it no but it's not necessarily that it's illegal but it's it's it's really only a nominal beneficiary of it it can only act as an agent that's the that's basically what it what what the point that i'm talking here with respect to murs role and what the ninth circuit has told us in fact under a case called board excuse me born versus coop when an owner of a debt transfers an interest to an agent to act on its behalf it does not mean it's transferrin and if ownership service if there is any action that's being taken on the right it could your honor and and i think even in our brief we said that mers is actually not bound by the quiet title judgment p forfeited status so south star who is the record record in the land records is the lender has no rights or powers to act in california because it is forfeited and that proposition of a suspended or forfeited business entity loses its powers rights and privileges within the state of california under revenue and actually asian code section two three three zero one so our position is and i understand robinson from just this is our position merz was not entitled to notice beyond what was given to souths or but assuming archy went out even if it was entitle to notice pursuant to robinson it had no capacity to act in california because its principle lacked legal capacity to act mers can't come into the court and say south star cannot do anything but we murderers as an agent of that principle can on south south stars be have so since an agent has no more capacity than its principal it can't act are not versus wells fargo bank is support for that so at the time of the quiet title judgment your honour's south star was the principal of record and because it was f t p forfeited status it had no voice because a suspended entity may lose its ability to prosecute or defend actions and that was found in the city of san diego versus san diego's for open government two thousand and sixteen case three up fifty five sixty actually i'm talking about it's a procedural error under federal rule civil procedure six d the purpose is to give the nonmoving party notice and a reasonable opportunity to respond the moving party summary judgment motion and supporting evidence  needed to provide that declaration because they knew about it at the beginning when they filed the motion but what they did is they said ah this is the eleventh hour and fifty ninth minute and i'm and here's the reply and here's what i'm going to do i'm going to put in this honors i was unaware of that particular opportunity for i did not know that i could have asked the court for additional time to do that was there a hearing now there was not  and we didn't i didn't realize that murders actually required notice as an adverse entity i thought only that i needed to record to basically let south star know or file up a list p also public publication so that information should have somehow been conveyed tumors or at least the principle and it didn't so that was the there in lies the reasoning if i can if you want me  bank of new york mellon concealed itself for six years from the world and from mr johnston my client attempted to reach out long before filing a quiet title complaint and said hey who owns my debt you are only required to pay the actual creditor you're not required to pay the service or can let you know but they still have to let my client know who that was a bank basically bank of new york mellon hit silent remains an unknown a sign and because of that action they chose independently to stay silent and they only became known after the after after the suit was file after the quiet after the judgment was entered after the list payments and finally sometime in april two thousand and thirteen they said oh where they were they are but that's not how it works just doesn't seem right to me that someone should be able to acquire title to whom they're paying that money to and that's the only that was really the only real issue and they never came forth they waited until that one yes and my question why why why did a fair outcome for your client to be able to quiet title in a note that hasn't been paid to find out who the actual creditor is maybe the real one will come forward and they end ultimately at least seemingly so they did talk and they came for and bank of new york mellon was an unknown a sign so it's bound by that judgment because it failed to act it failed to take its own it had a responsibility to do to act it shows not to want to play high go seek and it didn't care  it was procedurally incorrect he needed to have a full and fair opportunity to litigate which it from which was not provided in my pleasure thank you very much  good morning your honour's heather stern to be half a mortgage electronic registration the systems verse corp holdings the make of new york mellon as trustee and j p morgan chase bank may please the court the judgment here should be affirmed i actually think th has noted it's a memorandum decision not not a not a published case but we're not back you know i agree with that your honor but it is persuasive it was relied on by the district court it is our all fours nearly identical murs three different times in addition here when johnston the borrower initiated his quiet title action in the state court he actually attached a quiet title report that showed mirza's interest on the not material and that's one of the points made in robinson and the points made below by the district court it's not even victoria what murders is whether you want to call it this that or the other thing the bottom line is they were a known claimant of making mortgage payments after he obtained the quiet title judgment in state court was when he defaulted on the loan so it was it was done deliberately and there's no other alternative that you can reach looking at this record he's got a deed of trust with the the language identify mers he's got a title report identifying murs he initiate a quiet title action he even alleges in the quiet title complaint that the loan has been transferred he claims he doesn't know here today because he doesn't know to whom it was transferred but there's nothing in the record that i've seen that shows that before mers initiated the federal district court case what partners play a part of the service of plays so you should admit that it can be confusing i will grant you it can be confusing but a decade of case law has shown in california and in the ninth circuit that mirza's role is not illegal there's nothing none of these borrowers a tax on nurses role as being quite a good deceptive or anything like that have gained any traction and said there's a whole body of case laws that rejecting those attacks and  you know i would submit that here those attacks that have been rejected are important certainly but i get back to it's not even it's not even material because the borrower regardless of whether you think worse is claim is valid or obtained by this borrower and council that was attached to their quiet title complaint that also named mercer and the bottom line is just going up straight council i'm sorry your honor the bottom line also is they should know to whom they're making the mortgage payments service or as you said and here not the service or was not named either and they did not default on this loan until after obtain the quiet title action in the state what's your response to opposing counsel's note that there was a procedural error in this case does it matter i don't think it does your honor because at the bottom line of it what they did  here as as i think you were reflecting the borrower should not be able to do this a borrower can't even do this in bankruptcy court which is void a first priority deed of trust without making payment on the debt they can even do this  because they were not named in that quiet title action and their time the title was cloud it was the import of the declaration that you know had been transferred to bank of america new know further consideration by the court there was no further request of the court to claim there was any kind of an ambush that needed to be addressed period independent of what the law requires does the deed of trust documents  the loan documents to explain to it to a borrower that this debt may be transferred and that's why murs is named in that mers will be the agent that make sure the appropriate lender down the chain a few years after this is incurred that mers is there to make sure that the appropriate lender is notified that some action is being taken there is language in the deed of trust in the note talking about the a side ability and the fact that you know the size several times and that in making that clear to a borrower and so there's language in there i'm not sure your honor that there is language expressly tying the fact that you know maybe defunct and out of business they knew that so you know the next question is if you're if you're if you're making mortgage payments on your loan to someone and you sell stars out of business and they're defunct why are you naming the party that you're making the mortgage payments to and why are you naming murders which is identified as as the beneficiary and nominee for the south star knew so i would just conclude that you know a borrower should not be able to do this the state court state law in california required the naming of known adverse claimants was a known adverse claimant a successor in a sign to south star they were not named and you know just as was held in robinson that means that the state court judgment is void  and should be expunged from the land records and that's what the district court found and all the other terms in trappings of legal arguments raised here just their their address in our thank you very much your honor so very quickly i just want to clarify that mers is acting as an agent is an agent acting as the beneficiary so that only that there is no reason again mers is not bound by the judgment only bank of new york mellon is an ricker feldman boots booted out because they can't come in after the fact and try to appeal a state court judgment which is a de facto repeal health if we agree difference is that murders is a way they're saying that mers is an agent and a beneficiary making the sound and so that they're like they have some kind of monetary gain that they're supposed to get they contribute nothing all they do is hide and conceal the the actual title until something like this shows up and it is just nixon and there you go there you have it thank you thank you very much and you are to me thank you to