portion i know that the court typically has read all the briefs beforehand so i won't spend very much of my time talking about the right well the only other item that would kind of want to give the court a little bit of a timeline of that might be helpful in two thousand and twelve on may the seventh the the loan was celebrated and in june in july well june july she submitted a request for a loan modification with bank of america and in august supplemented the request for a modification not once but twice and then in september september twelfth and the thirteenth she began submitted to do tional documents that bank of america wanted and in october again submitted  and completed everything by october twenty sixth two thousand and twelve everything was completed but bank of america foreclosed on november sixth two thousand and twelve so i think that the the issue here in the court has developed a body of law and now on abandonment of exhilaration starting with boring the boring case so let me i don't mean to interrupt your writing thought but so you're you're planning now on appeal abandonment of acceleration but in in the in the district court you claimed waiver of acceleration which is something completely different normally you can't race a new theory on appeal well ok let me let me answer the court's question in two thousand and thirteen all of elements and so it only recently has there been a body of law that says that abandonment and waiver are different that has never ever been the case in texas law ever until recently there's been all of that happened after our pleadings were closed so when we said waiver we were saying temporary waiver we were not saying that there was a so that's that's why you see it that way it's not a new theory that we're bringing to this court we don't see it that way we see it as the same theory but the words back in two thousand and thirteen were interchangeable only in the last two years has that changed ok now the change while this case was still pending in other words had there been final judgment in the district court at the to change i can't remember when the actual finals i want to say the found judgment in this case was two thousand and fifteen i can look it up in the record but  i'm thinking it was two thousand and fifteen the final judgment in with regarding bank of america they might have been out in fourteen anyway boring chain in two thousand and fifteen the boring case and it was shortly after that we start seeing a difference in the meaning of abandonment of acceleration and waiver celebration that's the voice after that it was the very first time that anyone started versus so terrorists came out in april the court may recall from that case that in the trial court summary judgment was remembered against mr de fre that the acceleration had been abandoned away by the fact that he had made a a loan modification request that was the basis for the court's decision in granting summary judgment in favor of the linter that's exactly what we have here now now on appeal the court will recall that the court noted that but also said well there was also some letters of default that were sent and so kind of just nailed it down with that but it's this new line of cases that has come out since boring that bank of america waived excel ration by going forward with now bank of america's argument is well how can we do all  this we have to comply with the federal regulations regarding servicing requirements and it's the same time we're required to have to protect our investors by promptly foreclosing but is the court knows now and really even v n but now there's a c a p b regulations that specifically say that a linear cannot double tracked and that's exactly what they were doing there and that's prohibited by the c of p p now so that's not really a very good excuse on the part of bank of america that well we have to comply with with all of this know they can they can process the the person doesn't qualify they can send out the letter of denial and then they can go forward with their foreclosure process but here what they did was they let her alone cynthia's sin that sin this how many times i can't what eight times between the time of the acceleration and the time of the foreclosure now that should be plenty to form the issue and it has always been the law until recently the texas supreme court has taken the position in holy cross the holy cross case in other cases that whether excel aeration was abandonment is a fact issues if the basis was abandonment by by implication rather than by agreement  whether the court even had jurisdiction of any weight matter because it's an l l c and if a it one of the members a texas resident then there is no jurisdiction there's no diversity jurisdiction and that was never conveyed to the court in his matter fact over to you but that you amended to add a federal c to the case where the basis of of all we added we added federal claims but it's i don't recall whether we added a federal claiming it's in the week that i don't remember court i just don't remember that for sure but the basis for federal jurisdiction was diversity so so anyway but moving on from th t to things i want to point out about to me with matter as we stated in our brief they don't qualify as an innocent purchaser for values for the simple reason that mrs lim bharti was still living at the premises and that's constructive notice and whenever there's constructive notice then they can't be an innocent purchaser for value now does that mean that they automatically lose no but it does raise a fact issue there's a fact question there now so they don't prevail as a matter of law or at least they should on the other issues that we raise with any wick was on the up the award of thirty one months of real value to any wick against ms islam bar now i have submitted a copy of the statute for each of you to have in front of you the as you recall from the trial court order the trial court at first found that all these damages were were correct because it was a trespass case where we pointed out to the court no no your honor it wasn't a trespass case their claim from the get go was trespass to try taht which is purely statutory we pointed that out to the trial court but in  motion for reconsideration we pointed it out again and interesting the court said well in in the court's order denying our motion for reconsideration court said that well in the court's view section twenty two point zero two one of the property code subsection b was in a political well of course we played the whole thing not just that but we we believed and still do believe that b two is a political but even if it's not section d certainly is so what does all  mean well if you look at subsection b it says in estimating values of improvement in the courts as well there was no improvements here but then it says or of use an occupation that was the issue you go to to subsection to use an occupation is valued for the time before the date the action was fogged that the defendant was in possession of the property but excluding the value of the improvements ok in my view the way that this is drafted and i believe that we all have a duty to if in statutory construction to read the entire act i believe that b be read together there's no conflict there de just simply limits that time period to two years it can't be more than two years in my view that's not complicated thirty million thirty one months of rental and we believe that their claim to title is suspect because  e m i and wick and we've agreed to split our time evenly i hope to finish early but we shall see i'm speaking on the issues pertaining to my particular clients which are issues three four and five that were delineated in opponent's brief issues three is the waiver claim that judge smith was questioning counsel about and to answer some of the answers that you just heard from mr peacocke the first statement he made was that born was the first time that we have this notion of abandonment of acceleration under texas law that simply  court did not invent the notion that a lender may have been an acceleration it based on longstanding texas law and even the equation of itself of abandonment two principles of waiver if you read boring it's cites to long standing texas law for that point so the notion that this is some newly interpretate interpreted texas law that mr peacocke didn't have the opportunity to argue to the district court is simply false it's an old argument it just wasn't made in the district court and so it's been waived he also cites in his reply brings to the life martin case in which  it was noted there's an exception to the waiver principle where and i think the exact quote is something along the lines of the arguments not waived if it was presented to the district court in such a fashion that the district court  upon it i don't disagree with that statement of the law but appellant simply fails that test here at every opportunity in the district court her original state court petition the amended complain response to our motion to dismiss even the objections to the magistrate judge's recommendation a report in which she had specifically identified the argument as waiver of a future right to accelerate at no point did he say wait a minute i'm not arguing waiver of a future right to to accelerate i'm arguing waiver of a past acceleration and that's really the key distinction here what he argued in the district court was a waiver of a future right what he's arguing now is a waiver of a prior act and as i think judge smith noted  during counsel's argument those are two completely different things so i think he has waived that argument even if mr mr peacocke says they have the same elements so it may not matter i disagree with the notion that simply because the same elements may be at play that that means that it was an argument that was raised to the trial court and quite frankly even though abandonment is cast in terms of principles of waiver and the notion of conduct inconsistent with is certainly part of both but when you apply it to a future event you talk about are you engaging in conduct that is inconsistent with what the contract gives you the right to do and so it's a future right and of course as the district court noted in that context the issue was well there's an anti waiver clause in the contract itself and so this notion that we've engaged in such conduct waiving a future right is belied by the contract itself if the argument is the the subject at the end of the sentence is different it's a future right versus a past act and i think that that makes an incredible amount of difference in terms of whether the district court had the ability to rule on it in this case the district court simply did not but neither the magistrate judge nor the district judge in adopting the magic judges are in our had the opportunity to rule on the question that he's now presenting to this court so in that context i think it's been wa constitutes conduct inconsistent with the prior celebration no case has held that he referred you to the the french as a case i think he overstates the point about the loss mitigation efforts and what mr peacocke did mention and what was really what the court was focused on was the fact that the lender had sent out subsequent notices of default seeking less than the total amount d if you think about it the notion that a lender host acceleration hat abandons acceleration any time that it engages in any sort of loss mitigation activity with the b is i think drastically against public policy often times as i'm sure your honour's know from the many foreclosure cases that come before you borrowers don't really get serious about loss mitigation until the acceleration at a time obviously there's a chilling effect there which runs directly counter to the mortgage servicing rules that the c f p be has now promulgated they were not in a fact at the time that lamar he was going through her process with the bank but the point is not that there was double tracking the point is whether the last minute activity constitutes conduct inconsistent with having previously celebrated alone it simply doesn't but frankly we could have put on evidence of that had the argument been made in the district court but it wasn't that's the waiver point a briefly touch on the t t c a shoes the first point on the tcas i think mr peacocke is acknowledged in his briefing is if the waiver issue applies or if we properly foreclosed that's the basis of his t a claim this isn't a case where there was harassing phone calls or things of that nature his argument is simply we foreclosed when we didn't have the right to know if we had the right to foreclose which we did then that t t c a claim goes away the second aspect of the t t c a claim which is the third party to get collector portion of the claim bank of new york mellon which is the defendant and went against which that is stated the evidence in the record is that it was the owner of the note the entire time at all times relevant and his reply brief mr peacocke cites to the assignment of the deed of trust as i'm sure your honour's are aware the deed of trust is not the debt it's the security instrument and the evidence in the record and we've cited in our brief is that bank of new york meant bank of new york mellon was always the owner of the d is the violation of the texas property code in mr peacock's reply brief he cason as a contractual interpretation issue of course not that's not the claim he brought he brought a violation of  texas property code the texas property code as well as the provision of the deed of trust that he now says is the basis of his claim have both been somewhat exhaustively interpreted by various court both federal and state not a single one has found that you need to state the specific amount due in your notice of default to comply with either the deed of trust or the property code and with that from the fifth court is seems to be so close to this one the court noted that that was the sole federal claim in that particular lawsuit and a lot of these bank cases involve multiple multiple incorporation of the elsie but nevertheless it was never questioned and the peloton had the closing bell so it knows who the members are because the members had to buy the property having the l s e bought the property to set aside this at the truck or level and so i don't believe it's genuine to argue that they don't know who they are because they didn't know who they are they received the clothes and found the kind of attack to do any time i do believe that the the the cases from this court that say when a case is removed and when the removal facts are not challenged that you can waive that cla the suit nobody objects as in this case they did not object in the court and to strike down that intervention was well taken nobody has since done that and then they raise it in their in their appellant's brief but they do really don't they really don't go into it in their summary of argument they don't even make that part of their summary argument although they made it their first issue in the case so i don't think the court needs to go down the road of examining whether there were diversity effects whether it should take additional notice we could provide or any of that i think the haas cases dispositive and that's the end of that and that and that is of their way to do because otherwise a drug judge magistrate have ruled five years on this case with eight opinions with this issue never being raised and then if the based on the federal complaint once we intervened in the lawsuit our counter claim was compulsory because his suit was a trust their suit her suit was a trespasser try title action client title and therefore our claim for triple t was a compulsory counterclaim that required no independent jurisdiction now the argument that the council made that e m i is not a good faith purchaser was seeking to upset that status and that was not made so i don't believe that issues before them i don't believe there's any claim moving title i'm sorry against it is not in their issues what they're wanting is to reverse the damage claim i do not believe and neither did the trial court that the that statute has any application in this case it doesn't even apply that is a statute that is when somebody buys property in it and they're ultimately do not have title and they own it and they've made good faith prevents that  a right to recover for those improvements that is not the case at all this is a tenet severance who refused to leave and sat in the property from two thousand and twelve other way to twenty seventeen and never paid the mortgage never tend out trying to his losing the riddles and recover that real value and that rental value is based on temporary damages based on trade trespass which is the calling match case and others from the texas supreme court the last argument i do want to address to do this of this is important what an issue is the argument we've made being a subsequent purchaser at mr peacocke said that we were not a good faith purchaser longstanding law on that issue it's been a case called slaughter vs is the slaughter case that holds that in that instance you're a subsequent purchaser for value because a good faith and it would be an equitable for the mortgage or in this case to prevent that stat status and that is based on a stop i'm not on the good faith long standing rule it's been there it's been argued and it is good law texas transportations it's dicta but it's get picked on because it should have never been cited in that case to begin with because texas transportation was not a wrongful foreclosure case it was an attempt to overturn a judgment and everybody knows the judgment of a record you're on notice of what is a record and you can't say or good faith purchaser judgment that is of record in this case the foreclosure deed is a record that on its face you can't determine that there's an error in it and by the word see being muslim party providing the authority of the trust foreclose the property that stops her from later trying to can test the title as someone who has purchased subsequent to the foreclosure sale so this concept of slaughter i believe is still very much alive when it's applied in the circumstances in which it's intended to apply but certainly not in a case like texas transportation i don't believe that they made that argument business did we did we waive waivers at the trial court and the defendant was saying that well you were talking about waiver of some future event why would we argue that at all and that didn't help us any it's whether we whether they waived the exhilaration in may of two thousand and twelve that's the issue and if you look at the board in case the board case clearly says if there are acts inconsistent with acceleration by the mortgage company or the servicing company then  the mornings company unilaterally waves or abandons the previous six celebration so if that's true what happens then is the note goes back to its original terms and we're arguing that's what happened here that the mortgage company v o a waive their acceleration by doing a loan modification  there's another statute here that i'd like to talk about that i think it has been touched on this is article fifty two o two this is where the mortgage company has to give the homeowner the right to cure and that number has to be good for twenty days if you look at it fifty one point zero zero two d this was i took the deposition of the corporate representative in this case and i have some of the questions that i asked the corporate presented to in the brief and we went through the number the with tate to get the mortgage up to date and it was around forty two hundred dollars something of that nature and i kept asking if they had if she paid that you know you gave her the statute gives are twenty days was that the number and the corporate representative waffled on that and finally said well if she had paid it plus  s interests any other monthly payments that were due and the number was never given to or as far as a specific number that was good for twenty days and i bring this up because it's emblematic of the runaround that mrs mrs lombardi got through this whole process fifty two points or fifty one point zero two d talks about this twenty day period as for a residence the law makes a big distinction about whether property is a residence or not or just ripple property it's a residence it's it has a little higher place in law not only that but during this process the foreclosure took place the latter part of two thousand and twelve this was nine months nine months after her husband died this was a grieving widow trying to keep her home dealing with bank of america where they said for forty they set for closure then they cancel it cept for closure then they cancel it this poor woman was going through grief for a husband and having to try to deal with a company that was pulling the rug out from under it constantly and then finally at the end the foreclosure is set and she's calling calling calling you  you saw her affidavit in the in our our papers where she's calling calling calling she can't get anybody the foreclosure is coming up november seventh of two thousand and twelve and nobody will talk to her until after the foreclosure and in criminal law there's something called the miranda warning and i know a mortgage company doesn't have to give a miranda warning to a homeowner th if we're not going to cancel this one you better get to a lawyer and get help none of that was done to this grieving with your honor we asked if this case be remanded to the trial court that the foreclosure be set