i'd like to reserve one minute for rebuttal just to start off the district court did find that the rescission was done properly pursuant to the truth in lending act requirements and that the rescission question that the rescission that nobody's doing right all i'm trying to do is narrow this down i don't have in my opinion i don't have to think about whether there was a rescission whether was on time or anything else all i've got to talk about filed and then foresman action not a claim for damages and the question is did they wait too long to file that's correct this is a statute of limitations question time to force one action under sixteen thirty five correct enforcement action is simply to enforce the mandatory duties of the of the lender of right banks right my clients did their job correctly as the court found the questions it was sort of sleeping on their rights the right that your claim to be sin did past tense it's done right and the bank is ignoring that correct and so now so sleeping on their rights during this period of time that could extend as far as i can tell twenty nine more years in an average sort of hypothetical well that's what i'm worried about right and this is this is and that's what the trial court was worried about which is why i said well we're going to there's going to be a statute of limitations even though the statute doesn't and this case doesn't supply when are you are that that's inconsistent with our case law the the case law and this hasn't come up very much in this circuit or in the district but it did come up three times prior to our case one in oregon one in i believe it was northern california and the district judges have ruled inconsistently and you've done a really nice job of setting that on your briefs but i'm just trying to ask whether your position is that we should find error because the judge said consistent with federal case law we to we need to import need to find a statue of limitations period is that a bone of contention for you yes it is that's exactly what we're we're we're eyeballing that you also argue that they should look to the state law maggette that you understand i'm asking just over the threshold question you think there should be no that's correct because this is not this shouldn't be a terribly unusual or confusing argument this is how do you interpret a statute you first of all look at the face of the statute  they the congress did put a statute of limitations in the act under the damages portion they said you if you're going to file a claim for damages against the lender for somebody if there were no statute from filing in a foresman action and just rolling with it as long as the bank ignores that or misses the written notice of rescission for years and years and years and years and then  snipe i appreciate that it was not going to happen very often but what if it happens even once how can that be the right result well that's that's a question for congress they keep the we have to look at the well established law of statutory interpretation doesn't express lisa pious statute the general rule is to go the state statute that's general authority out of all night desk del costello then reid says you can only decline to borrow the state statute when the rule of federal law clearly provides a closer analogy and there is no closer analogy as i understand you to be arguing and so therefore i got to go to a state statute i can't it sit there based on this case law that's dead set in front of me but the state statutes as i understand the the judge's decision if we're talking about recision that's under in there is that if you're going to argue that the closest state statute is common law rescission which i mean at first glance that kind of makes sense it's you know that the concept of rescinding alone  problem with that though is you have the truth in lending act which is plenary statute it dominates the field of resending a low mortgage loan and there are very specific ways that you go about that if you don't do it within the three years if you don't write your rescission out as properly or if you want to you know there's also the three day period which really isn't it issue here but if you can import a common law rescission statute of limitations when you have a plan or a statute action because again it's a truth in lending actory cision this one about the washington consumer protection act these are both consumer protection statutes there are there are other washington statutes that perhaps need to be considered i certainly grant you that understand that and we you know so we send to iraq as you know the statute could have been written differently i mean what do you do when congress is silent on some of it is your time i mean i think three of us have given you pretty clear indication is a very tough argument for y you want to talk about the washington statutes that might have been considered or what we ought to do yes i'm particularly concerned just on my scorecard with the washington consumer protection act i think that's a four year period and and there's a question of fact here he didn't really reach about when the bank received the the rescission notice we could send it back for that to figure out whether your clients are in under the four years i don't know if they are we can't tell from our record that's one option but if you if you lose on this first argument about importing no statute then what is your next best argument i would say we would go to the six year statute of limitations which is that on track of the contract statute in the state  statutes of the judge just regarded that he set that one aside so what is your response why did he get that wrong he got that wrong because i think he was trying to reach the result that you you've got to look at th i think i would argue it just the opposite you can say either you go with the tiller rescission statutory scheme and you stick with that or you you can't go rescission under common law th alone and you continue to do the research will process under under taylor and rescissions an equitable remedy right per act and if there's no statute of limitations it is the general rule i think in all circuits and i know in this arc and under the i t t case that you look to the in a statute of limitations that is a pleasurable in the same statute and you use that as a guideline to determine when you should  latches applies somewhere along the line and you have to fish or cut bait i think on what kind of statute tory remedy you want so why is six years the judge wrong with six years saying the six years that applied didn't apply ask you i would because i think that the if you if you are going to boil this down to its to its bare bones what we're talking about a contract between  lender and a borrower you can just say that's that's a that's a contract there's there's as there's an offer an acceptance in money paid at cetera and you can't so you've got to if you're going to pick one you can't pick the consumer protection act one because that's a completely separate again plenary statute under the state laws that specifically talks about unfair and deceptive practices we're talking about enforcing a rescission but they're both sort of those statutes are consumer protection statutes they have different purposes and i don't see that what i don't even know what you mean by plenary but i don't see that that would make any difference given my interpretation of plenary i think the consumer product safety statute and they tell i have the same some of the same purposes and then you have the contract statute and then you have a washington statute that says for everything else correct that you need more than for you what is the bigger it that it's a four year statute of limitations from the date of harm for something besides the one you're at plies are now the banks willing to concede that a two year applies but that wouldn't do it for you before my depending on when the rescission notices received in a six year certainly would write yes it would and then we're just we're talking about the you know the simplest form of the transaction here which is a contract by plenary i just simply simply mean it's like the clean air act clean water act it dominates the field of that particular subject maybe but i stand to agree with judge payne and invite you to respond if you'd like but  statute but hasn't yet considered the consumer protection act and your your your complaint does at least in passing mention the consumer protect us and we would have amended the complaint if we'd been allowed to and i would that i would say that as second choice is let me but ask the question all i was going to say is what about the washington quiet title action statute well that would be that would be the next step that a person could take if they if there was you know the any different than rescission doesn't it say any security interest given by the borrowing cluing any interest arising out of the operation of law becomes void the lender must take away any action necessary or appropriate through flecked the term a nation of any security interest created under the drams action that's all of washington quite title statute yes and that's that's another reason why i guess i'm understanding if i were going to be in your point that's why i wanted you to task for the question i'm surprised you didn't ask for the washington quiet title action statute well the second the second step the if you have  an action on contract under the six year statute of limitations you're your next step is to file quiet title suit so you're saying it isn't some or enough to use it i'm saying it is i'm saying that well but  shouldn't that be considered at all also and would we do that here at the first instance or ask the district court to do that i mean i was going to be when i put a question thank you i would mike i would i didn't consider that in the brief but i would say that this court  decide that you know what the statue of limitations is for a quiet title action in washington it's six years that's the contract that's the contract statute of limitations bar of the contract yes what is what are you referring to as the that that's six years six yeah and and those are the two that i would say it most closely resembles what we should do here for going to go with the state statute number two i would say use the consumer protection act if you're going to reject the six year rule statute and we see so i guess i've addressed most of the the issues i you have that you're arguing but you're over your time but may please the court my name is elizabeth andrews and i'm here on behalf of bank of america who is the plaintiffs loan servicer and fannie mae who is the owner of their loan and i'm not really going to spend a ton of time on this question of whether there should be any such of limitations the panel seems fairly convinced on that point the only thing that i would add to the discussion on that point is to commend to your honor's the concurring opinion in the agency holding case because i didn't tune into that until fairly recently myself we did cite that case throughout our brief but it was a case in which there is a concurrence from justice in which he had an opportunity to consider what my colleagues the whole court had opportunity consider my colleagues exact argument which is if the the statute doesn't say what the statute of limitations is there just isn't one is not the court's role to go wading in interstitial law making all that stuff is a bad idea and justice scalia did i manage to pull any other justices to that point of view and in fact justice o'connor who wrote the majority in agency holding went out of her way to say by the way justice scalia thinks this in for the record none of us agree with that what would happen if if this is i don't cast any aspersions certainly on these folks here because i think this is a really murky area and we're trying to figure it out but just if we could engage in a hypothetical if a bank ignored missed a notice of precision and it's pretty clear it's a done deal once they send it if the bank missed that for twenty nine years and then somebody popped up and said hey i want to receive even paying their mortgage payments along then what's that unwind look like what happened that is a pretty dire situation i case scenario would be say there's two months left on a thirty year mortgage they say we want our money back they pop up and they say you know i rescinded timely three years three years after and i'm now bringing an enforcement action and what would happen if that were to happen not only would the the plaintiffs be entitled to receive back all of the interest in that it would be twenty seven years all of the payments not all the payments around i think your team in all fairness convinced a judge or certain suggested there should be one year and now in your briefing you've said oops really it should be two but i think the two you're looking at is the catch all but and so what about these more specific seems to be that consumer protection act or perhaps rescission are more specific and more suited but i don't think those have been considered yet well your honor the statute that we suggested in our brief is we didn't just sort of say well it's  may be some a guy on a limb but i do think that the court should not totally discount the option option of using nine hundred forty the one you are importing the damages so that your brief took the opposite position you're flipping back to one well i mean i think that this court does not i have to decide that honestly doesn't have to choose because it's the same outcome whether it's one year or two years yes but i'm what i'm suggesting is what if i don't think it's one to two years and  and for what it's worth michel did not go to the analogous consumer protection statue in california they went to the rescission statute has been california state laws different than washington state  secondly is it is of the statute that is like this one that says state statute or can they go for any statute like a contract statute or even one i that too but your honour's are just as good a position as a district court so i don't think remain and is really necessary i think your honour's can go on as we decide that it's summer protection act because we can't tell when the bank got the notice of recession correct correct and in that case i think we're past the pleading stage yes yes you have to do some discovery that's right yes ok and so that would be you know certainly prolonged case i do think that it would be perfectly fine for this court to pick whatever statute you thought was appropriate  in washington which is the six year statute i think that's just not the best analogy because that is about breach of contract a contract action usually is to enforce a contract that this is the six year statute is is for the classic breach of contract case that is to enforce the existing contract as we have said and as just he says this says well quite now i think this is this is going back to your question your honor i think that quiet title is not a great analogy here either and the district court characterized this it's essentially a declarator of my chain of title that's it's pretty close well that the difference between them i think it from a practical standpoint if you resend your mortgage loan right rightfully so within the right time is it not so if the bank had done what it needed to do in the wind up of the hole they would have had to tender they would have had time to take all they would have tendered the property to the creditor or it's reasonable glad you that's right and the question then becomes what if they can't do that but if they don't do that well this white will they didn't do it because you could never give many notice if that never wind up that's my question  was supposed to be who sleeping who sleeping and it really changes pretty dramatically it does but in a and i do think your honour's correct to point out that we apparently we don't actually concede any of the facts of course but we at least taking the allegations of the complaint is true when do anything for twenty days nothing happened so from that perspective sure but i think our sleeping period ended when our twenty days are held essentially and then the onus shifted back to the plaintiffs to say ok we're rescinded so all you're saying is the period started whatever statute you by my count the players had four opportunities to allege facts going to those four elements and have just not done it so i would just go to the extent that this is going to get reminded and i don't every thank you for your you miss very helpful thank you if you come back up to the podium i'll give you a minute please thank you yes i also want to point out as to the one winding thing but there's no question that they didn't do anything after twenty days yet they came you don't have a c p a going all you did was mention in one sentence the c p a you there's not one word about the c p a or any of the elements of it  nations where you can be allowed to amend to put one in just because you mentioned those three words in one sentence that really wasn't even a complete sentence but i think we can take it as uncontested the bank didn't do anything  that part of the basis of the c p a claim would have been that they attempted to do a foreclosure and twenty seventeen so well were well within the statute of limitations prosy v a claim on that i'm not saying we raised the claimant in fact i'm saying we didn't raise a claim in this in this case but amendment would not be futile because part of the basis of a c p a claim would be that they attempted to do a foreclosure on something they even admit was rescinded they can't do that that's unfair and deceptive practices so i just wanted to point that out as another basis for the thank you counseling thank you both for your arguments interesting case and i'll take it under advisement try to figure it out thanks so much will stand in recess that'll be