request only the payment of a periodic payment but they also do not offer to accept that payment in the a for a closure those two things are required by the limited bankruptcy rule exception to the discharge injunction by five twenty four as a result these monthly mortgage statements simply do not qualify under five twenty four j and because they do not qualify under twenty four j under any circumstances the trial court erred in using that as the basis for denying class certification the place to begin this analysis is not with my brief but with the brief of rushmore at page fourteen rushmore admits yes we were words who are chapter seven debtors who have not yet surrendered possession of the property foreclosed on a vacated the property yes or no yes your honor if i make answer further though it doesn't matter if i have twenty four j section three is not met that is the first requirement of five twenty four that they be in possession of the home the second is because a book rushmore will forgo foreclosure for those who make payments right so that so they're different they're different it's a different class of people but you have to look at they're not different in this case because they don't offer that what they offer is if you look at the language that they quote to from their mortgage statement it doesn't say if you make  monthly payment we will forgo for closure if they did it would be a different case that's what they argue but if you look at the language that they point to on page fourteen fifteen of the brief the language says specifically failure to bring your loan current may result in fees and foreclosure the loss of your home as of this date your ex days delinquent on your mortgage so they're not merely saying if you make a ninety five nine hundred ninety five dollars periodic payment then we will forgo for closure if it did that's that's what the rules intended to do is to say look you have the right to foreclose but we have the right to for close i tell you what if you would like to remain in your home we'll let you make a periodic payment and stay in a home that's what the rules designed to do but that's not what these documents say and remember these are the same exactly monthly mortgage statements they send to everybody prior to bankruptcy the same one if you're not a default at all you get the exact same orchestrate and this statement is as if you're in bankruptcy it's for informational purposes only well that and that's the confusing part because they send that same document before anybody is in bankruptcy i understand what they say if so i mean that it could go to everyone right because it says if you're in bankruptcy for informational purposes and that's the issue that the trial court here has said i'm going to decide he's already denied the motion for summary judgment he found there was enough evidence to go further and deny motion to dismiss and motion for summary judgment on that point so there's enough for a jury to decide whether it's accepted and i can look at it as a whole wilson's question because i'm sorry i didn't understand your answer so it says in five twenty four j that it has to be their principal residence explained to me why you say that that doesn't matter for the class so it would matter if the other two requirements are three requirements or five hundred forty number one the creditor butane to security interest in real property and it's their residence that's where that's where this comes in where your representative isn't representative of the class then but but because the documents don't satisfy all three requirements that point is a relevant to satisfy five twenty four j have to live in the house and the offer has to say section three you have to the act the act of trying to get money from them must it says not only it's a requirement it says the act is limited to seeking in obtaining periodic payments associated with a valid security interest in lieu of pursuit of in ram where daily say that they have to i mean i'm not sure it says it's for informational purposes so why doesn't it comply with that but but you can ask for money and then say at the same time it's for informational purposes so that's what they're trying to do they are confused does it on purpose in their first argument it says yes we are seeking money under five twenty four j which we're allowed to do it says you know if you your prohibited the general jackson five twenty four says look if there's been a discharge you must stop you must stop trying to get money from the speech and there's a very limited separate applies when all three of those requirements are made in you say in the third no one meets this third element that's right and because the third one is never met under any circumstances then the document self cannot comply with five twenty four j and because five twenty four j fully cannot be complied with then element number one is really irrelevant because they don't meet element number three if they did meet a bit number three then your point that yes they need to reside in the home or not reside in the home would be an issue of individual fact but because they cannot satisfy the third requirement and all three must in fact be satisfied that five twenty four j has simply no application to these particular morgan states and so if that's the case that was the basis for the trial court's knowledge certification he's already determined that it's up to a jury whether and what happens i mean why isn't the district judge right that these people could be all different your person doesn't live in the residence so that to me seems problematic i understand your argument but then there's some of them critter reached out and contacted rushmore and then rushmore could have sent the statements i mean there are these are all encompassed within the class and so they have different issues with this so just as this court's decision issues and those issues predominate i completely agree and so if someone called and got asked for a statement are you saying they still violate the act by sending this to all if they call and ask for a statement they should send a different statement they should send a statement like the statement in helman that's clear how do you know what their communication was what if their communication is look i want to stay on my property can you send me a statement that i can pay if i want to stay on my property and there's no evidence in the record it's mentioned that there could be people like that and if there are people like that then their documents will show and they could be excluded from the class but that's there's been no evidence presented or your seek other have to read it on home and you're seeking class certification so the burden is on you so you have to show that the class is that narrow and but only if it's if it's relevant in those people actually exist so i come in and i say you're right i expect everybody has received a discharge should no longer receive regular monthly statements that is our position because a regular monthly statements say you have to pay this entire amount and there are confusing in that for example my clients it was two and a half years after they abandon the property they start receiving these monthly statements doesn't ask and doesn't what what the what the statements are what the same is allowed to say doesn't differ for those who vacated their homes versus those who didn't it's not at all and that's part of the problem there is the exact same statement they received before they filed bankruptcy this is the exact same statement statements that everybody who has a mortgage received the don't join in as if they were their mortgage statement to that is different the district court said that there were different legal issues that had to be answered for people who vacated and people who didn't  n to me why that's not correct and what happened was the trucker got hung up on that first factor of twenty four j because it says number one hundred five twenty four jay says you have to have the bank has to have a security interest in real property that is the principal so the the judge is looking at that one factor but where he got hung up on that one it was easy for the nameplate of because they had already banned it but the issue is if the documents themselves do not meet all three of those factors of five twenty four j and because it cannot comply with number three that first factors are really not relevant so the point is you know they five twenty four says you must stop trying to collect money from these individuals and there's only a very very limited exception where you can go forward and that very limited exception was not met here what the congress intended to do here was to say look we have the right to foreclose against you but i tell you what let's make a new deal if you agree to pay us a thousand dollars we'll let you stay in the home do you want to make that deal and it should be clear that's not what they did here they said the same thing in the mortgage statement says if you fail to bring your mortgage corp current then you may get foreclosed on will bring in their mortgage current was seventy thousand we submit to the court that the district court did dot abuse its discretion our twenty four judge apply to any one browser that is five twenty four j does apply and let me talk about that first of all you do have issues one is the principle residence issue which is individualized was individualized with miss sellers second is the whether it's a whether doesn't there's not one case there's not any authority that says what a periodic payment is what a periodic payment to the settlers is a different type of payment that may be required of the smiths and remind me remember what the district court said about that third element the district court did not address the third element the district court and what i would submit to this court is that's the problem that you hear from was a member so was this argument in front of the district or the five twenty four j exception generally was in front of but not this specific argument and let i guess let me tell you why i don't you back up on that so did they make this argument about number three to the district court that if any one of the was not met yet still for all yes that argument was made it just was not addressed in the class certification order by the court the court said since it was a principle residence the exception didn't apply in the court didn't need to go any farther on whether this exception applied or not and do you agree with your friend on the other side that if you don't meet three you lose i believe three would be a fact issue that would be individualized to each borrower and i believe three is important because it does have to you have to seek payment these statements went to everyone as they said the statement goes to someone and says if you don't want for closure and that's what this exception you've got have a lien on your property principal residence and you've got to make this payment and that's what's happened here and if you want to keep your home you've got to make that payment and this exception was placed to forge a relationship between a loan servicer and the borrower if it was their principal residence and there were still a lien the reason the theories are different and the reason i think the court first of all is that a threshold issue said whether this  exception applies is factual because of those three elements the court did focus on principal residence but it doesn't apply to the sellers so the sellers the issue the sellers are going to be trying as a class rep is going to be saying was this an attempt to collect a debt because the exception doesn't apply but we know the exception applies to others in the class and address typicality in the court you're right judge a court limited it's now says to predominance in the predominance issues where this exception issue and another issue i would like to talk about wakin we affirm if we agree with you on typicality but not predominant yes as we as in front of the court as was in front of the court yes we address to cali we addressed whether it was an adequate class rep we addressed ascertain ability i would like it unless the court has any more issues with the five twenty four j i do not sure i'm not sure that i understood your periodic payment argument can you explain that like why what they're saying is judge just look at the notice look at the statute notice doesn't meet statute they lose why aren't they right because if you look at the statement if you look at the statute it just requires communications and a monthly statement that says in the ordinary course of business in the ordinary course of business this was the statement that was asking for periodic payments and periodic payments means whatever it takes to stop foreclosure there well but their beef is that it doesn't say that in other words why shouldn't it have to say look we're seeking piriac b s this payment of five hundred dollars in lieu of foreclosure my reading of what's in this notice does you have to make a periodic payment it says you have to bring your loan current or they'll be under the closure periodic payment where does it say in lieu of foreclosure it says failure to bring glenn current may result in foreclosure isn't that the same thing that you don't make your payment you're going to be foreclosed on so explain to me if i'm nineteen payments behind in this situation and you send me one of these my understanding was if i make one payment if i start paying every month but i've missed the nine you're not going to foreclose are you saying if you don't get current we're go foreclose no matter what that language in the statement requires they're going to be current and that's going to different some people are only going to be one or two payments behind some people are going to be seventy thousand behind and that's going to be individual as the statute doesn't protect you from that the way i read such act is limited to seeking or obtaining periodic payments associated with a valid security interest in lieu of in rounds so the ability to seek payment at all once you seek payment number one you have to agree not to foreclose if they keep paying even if they're in their rears and you're saying you read the statute differently i do read the statute differently i would like to turn to the other ruling by the court about the least the fist a k did consumer which i think raises some of the points you raised judge so the least the fist a k did consumer there's been the helman decision there was the recent decision by this court in november the late verses which we weren't able to put in our brief the late versus the medical device case and the least sophisticated consumer you have to take into account while it's an objective test you have to take into account the plaintiff's account history and the plaintiffs circumstances so in this case when you're applying even if they're right on the exception you have the individual individualized issues predominate over the common issues because just like the example if you get the statement and let's say the bar recalls and says i want to stay in the property please send me statements or after surrender they say they try to cut some deal whether it be a deed in lieu or eight months mord until there's a foreclosure so when you have the least sophisticated consumer and again the helman case says that in the late case says it it is an objective test but it doesn't in the late court said that in their opinion the lisa fisted did consumer oh i'm not sure their home in case helps your counsel even though it's an unpublished opinion but there's a lot of authority there that says that in order to determine whether or not the predominance requirement rule thirty two is met you can do that by showing that all of the class members claims were derived from the same common document and so it seems like what the sellers have done here is they're limiting the class to everybody who got these two mortgage statements period correct judge but the class is so broad that if someone reaffirmed if they surrendered if they called in you don't have to take in account the plaintiffs circumstances for that objective test rod mortgage statements like this have been sufficient to satisfy the predominance requirement but that's in cases where the circumstances of the borrower aren't relevant it could be a fee situation where someone is just a debtor when you're dealing with post discharge situation with people in their mortgages and their house the situation and the fact they received the statement in hellman says and so does the late decision the leas sophisticated consumer can't be that test can't be done in a vacuum you have to consider the seller's mind and what's happened in the seller's a can or should lee objective and partially correct and that's exactly what the eleventh circuit has said and other circuits have said even though they apply the unsophisticated test what the least the fifty k to consumer test the objective part of it it doesn't matter what the seller say if the seller say like in this case they weren't deceived by the statement they still have a case because it's  objective test but the subjective component is what happened in the seller's situation and what would happen in the smith's that you ation you would have a class rep like let's say the smiths or someone in the class that asked for their statement when been communicating with rushmore that person and that situation with those statements that account history has to be taken into account in the court said when in dystopic case and i agree with the judge there are certain types of cases that lisa physick a good consumer is done entirely objective because everyone's just a debtor it's an error in a statement it could be language that's required by statute it could be a late fee that to high and that error applies equally to everyone but in this case and we had an affidavit from our client that said the individual circumstances in florida after people filed bankruptcy and they surrendered their property there were lawsuits they were counterclaims they were people want to stay on the property they were deals cut everywhere so the recipient of that statement the evaluate the lease of his to cater to consumer would you would have to look in the shoes of the seller and the words in the shoes and you don't evaluate the least sophisticated consumer in a vacuum is in the levin circuit cases and it's in cases all over the country so this type of f t c case this type of florida consumer act case the least sophisticated consumer has to many individual has issues and those individual has issues predominate because the recipient of this statement doesn't apply equally to people just like judge you said before as phone calls and you have to look at the history of the count and what happened post discharge also did they did the person was a relief from the stay during the bankruptcy did the person or was the lien already avoided did they reaffirm did they surrender did they move did they make sense some payments in this post discharge world this isn't an error that you just look at the statement and say that's an error so you apply the lease of physic a to consumer and they deceived in their missile that unless you know the circumstances of the sellers or the other class members no one can look at the statement and say i can't tell you have to look at the actual borrower in conjunction with that objective test and we believe this is the type of case that is the least sophisticated consumer requires the plaintiff's account history not just predominates the court did rule that so this court can affirm based on that even if the court doesn't think the discharge exception applies and going back to that the discharge exception the discharge exception  i think still how it would apply just like the court said it would apply to people in the class and i understand the argument about the periodic payments but the information in the statements would be different because you have an individual that meets the discharge exception with a lien on the property in the principal residence and let's say they just had one payment that was owed and if they had to make one payment to stay in the residence that statement the financial information in that statement is different for every borrower it's that language about bringing failure to bring the loan current or you'll result in a foreclosure we have not seen any case law or anything interpret ing this discharge exception that said you had had any magical or special language for it to apply it was s'posed to in the intent of it was when someone files bankruptcy you say reaffirm redeem or surrender and then if someone's in the principal residence it was supposed to generate discussions and you are allowed to seek payment and it does say periodic payments or you can force the security interest there's other points that we raised that the court didn't address the court only addressed predominance we don't believe the sellers are an adequate class rep at all because of the discharge exception and their unique circumstances they went in depth in this case to talk about the seller's individual fact circumstances in application of the lease sophisticated consumer standard why would they need to do that if this was a true letter case where individual circumstances did not have to be considered as part of the objective test why not just put the statement attach it to summary judgment and say here it is look at the statement judge it does i mean the facts of the sellers have to be read and they have to be considered when you're doing that objective test the settlers and the the way they litigated the case because they needed to and they know this the facts of the settlers case are relevant so in this type of case the least sophisticated consumer the individual circumstances of the bar words are relevant other cases judge like you mentioned judge wilson where predominance is met just by an error in a statement you know even the facts of the plaintiff aren't even relevant you don't even need any of the facts of the plaintiff you just move for summary judgment and say this statement is confusing to the l acadia consumer and the facts of the seller's don't have any relevance whatsoever we also i'm opposed the class on ascertain ability grounds and the court didn't rule on that and this court wouldn't be i mean there was no evidence of ascertain ability we had evidence from rushmore that they don't have the computer coding sections to talk about whether the property was even sure rendered or reaffirmed clearly that's an issue here reaffirmed as in the class definition if someone reaffirmed the debt during the bankruptcy they wouldn't be part of the class and this class can even be ascertained the court and you could tell from the record in this case four attempts to change the class definition and when they moved again after they had their second chance they gave the broadest definition possible and there's just that that class is not ascertainable they don't have any evidence and they do have the burden to say once you receive a discharge and bankruptcy circumstances change dramatically i have twenty four f a a puts in a junction in place an affirmative injunction against the debt collector says if your debt has been discharged you need to stop you need to stop collecting from these individuals because that's the fresh start that's the whole purpose of bankruptcy there is a super limited exception under five twenty four j that was only created within the last six years i believe i've twenty four j was passed and it was specifically passed so if you start with five twenty four j it says this is discharge operators in your country in a class where rushmore actually saw foreclosure while they were making  payments i'm not sure but i you know they they proceed to send these documents while they're going through foreclosure that's correct because they they believe they interpret it is five twenty four j gives us the right to just keep sending payments we don't have to do anything special because we have carte blanche the ability just continue to send regular monthly statements or to your bank if they are not to doing things the discharge so any everyone in class receives discharge so five  seeking money and so if you're going to seek money from somebody who has already had their debt discharged you have a very limited window of how you can do that and it specifically says if the person still living in the home and you have a security interest and it's in your regular course your business that means like debt collectors who don't renegotiate and take additional payments can't do it then such act meaning the act of collecting money is limited to seeking or obtaining periodic payments associated with a valid security interest in lieu of pursuit of enron relief so what does that mean will makes perfect sense so congress had all these people go bankrupt because their downturn if they've never saw foreclosure and all they're doing is seeing periodic payments and this as it's in for informational purposes only i'm not i'm at a loss as to how they violated this it's because everybody already got a discharge so the class definition is everybody who received this payment after they receive a discharge so now if the notice received this notice after discharge so and they send it to everyone including the people who got a discharge right and it says if you've got a discharge it's for informational purposes and they say if you've got a discharge we are seeking pain that's what mr lynch my friend just argued he admitted yes we're seeking money from these people were allowed to do that that's the difference they aren't helman at all for fellows who they say if they offered a periodic payment if you can look at this document figure out what the perry out of payment was sorry i'm asking a really bad question but where does it say in this statute that they have to give notice hearses they can't foreclose it says in lieu of foreclosure so what you you know where does it say that they have to tell you in lieu of foreclosure they say it's for informational purposes they seek payment and you have no evidence they've ever foreclosed on anyone that's paid a periodic  yes or no he got a depends on what your con a periodic payment what mr lynch argued is that it doesn't say here's a periodic payment payment that says make your loan current so it's super confusing in that to make a loan current to seventy thousand dollars you were right before we said the periodic payment is normally like a thousand bucks or five hundred bucks or have they in in my definition not his have they ever at or close yes because i've done several of these cases so here's what here's what really happens that evidence in the record that they violated this by foreclosing on people making payments so what happens is they don't if there's no clear there or isn't there well it's difficult because they take money because the money's of it but there's no specific separate agreement that says do you make that payment i won't for close that's what the confusing problem is if they send a separate letter that says we understand you're still in your home we have the right to foreclose i tell you what if you make a payment of a thousand dollars a month for the next twenty years we won't  foreclose as long as you can make it that that thousand dollars payment that's what congress intended and that's what they did that would be fine what actually happens is people receive these invoices and they pick up the phone and they say i already file bankruptcy i would like to stay in my home can you help me and they go i tell you what  make a couple payments and we'll see what we can do that's the problem because people go ahead and start making payments i'm sorry to interrupt you that evidence is in the record that evidence is not the record because we're not to that case yet but i've done four of these cases and in the in the market that's what that's why i send these if you're not there for informational purposes and my businesses don't do stuff for informational purposes they do stuff to collect money that's that's really what's going on here and that's what happens people get this they're confused they call and they say i don't know if i can get your refinance but make a few payments and we'll see and so even though the debt has been totally discharged the people want to stay in their home they make the payment and they try to do something but there's no requirement that they stop the foreclosure so they take them for three months in the make change their mind if a close anyway they've collected three thousand dollars more on a discharge debt if you want to collect money in a discharge that you can do it under very limited circumstances bank of america does does this right now they sent a separate agreement and it says we understand you're still in the home we understand you filed for bankruptcy we would like to make an offer to you if you pay x dollars a month we won't foreclose you agree yes then the consumer has an agreement it's clear what the periodic payment is they understand what their circumstances will be and they can go forward with confidence otherwise if you affirm this then mortgage companies have the ability to completely ignore the discharge injunction one of the fundamental principles of federal law the trial courtney's a bill would still go forward it just wouldn't be a lie or act well it would go forward individually and what would happen is they would continue the practice across the board until each one of