a few high points that are in the briefs and know you've read the briefs but as the court may recall this case involves a property in tyler the court may recall from the the transcript and and the briefs they had some physical problems she had surgeries he had a brain tumor and so they had to deal with these issues and which necessarily caused financial issues so there's history here of the famine citic and trying to work things out from time to time with bank of america and then with the lenders that took over after that in the service or the service or being new peon financial l l c but they do business as shell point so that's why in the briefs you see the letters s m s that show point mortgage services so during this time of course they're getting by the best way they can and without belaboring a lot of the difficult facts situations they came to a point where that same authentic and received a notice of foreclosure sales in oh well first they received one in august of two thousand and fourteen and again in september and then again in october the ones  just in september were postponed and so she called s m s to try to arrange for some kind of arrangement so that the property would not be foreclosed at that time they had approximately one hundred thousand dollars in equity in the property they didn't want to lose the property and at that time the family city can mr  had to move to dallas where she could make enough money to try to pay for these things the property and so forth and so her children were living at the property at this particular time all right so as you may recall the evidence showed at trial and by the way this was a bench trial with the united states magistrate there in tyler  transcript and so i won't read all of it but there's a part of it here that is very important and i do want to read just a little bit of it in its own it's in it's in several places it's in the exhibits it's also in volume two five and on page seven thirty eight it starts but in the course of the conversation which is a fairly lengthy conversation the c s r which is the customer service representative states in park well she says  trying to get enough money to pay it but haven't been able to pay it all she had saved up eleven thousand dollars to to pay on this but she owed a little more than that ok his response right and  and see what's going to happen once you once we are able to set up a repayment plan we can use those funds as a down payment to start the repayment plan then we will be we will spread the remaining we'll spread it out over a period of twelve months that's how our repayment plans will work ok and she answers ok now going over to the next page page seven forty in  the transcript then about a third of the way down the page she says ok and they're not going to foreclose on the house while we're doing this  is answer right once you get that and that's an active workout with the company so once you have felt under mr peacocke out of read that a few times i'm not sure what mr taylor meant that you think she got that in whatever that is the active workout plan well i don't know what he's saying the premises for not for closing is that you must get that he did well that's true what you think that person is referring to well they send out i a form and they send it out the evidence is they send it out the same day october the third she  got it she already had the generic form and she filled it out in send it to them on the third the same day but  that's that well let me explain it this way the consumer financial protection bureau has and its regulations and it's not part of this case but to answer your question homeowner so that's probably one of the reasons why he said that well there once we get the idea in and there's an active work out there then there's no foreclosure view it that particular statement is not really the point or the issue of where i want to go and she when she says ok they're not going to for for on the house floor we're doing this right and then he's talks about once you get the idea and so forth and then she says ok so is it active at this point his answer no it's only active until we get the information back from you and then she said yes this is starting to get really significant now ok because i don't this is her statement because i don't know they had sent me a letter last month that said that they were going to foreclose and i called and talked to the lady here at this number she was going to send me some stuff that i never got and i'm afraid they are going to foreclose before i even get the information from his response is right you don't have a sale date so that's not an issue ok she says there's not one now his response exactly you're in good standing and so forth and so on there's no sale date i think earlier in the process other side to work out some sort of deal to does that make a difference that it was it wasn't like your client still had a right to stop the forfeiture it was totally up to the other side and then this meant misrepresentation to took absent does does that misrepresentation have some sort of a fact when it was totally discretionary up to them as to whether they were going to give your client another opportunity or not well into answer your question your honor yes it it it could have just said sorry you're too late you can't reinstate we're not going to do a repayment plan we're going to foreclose then she would have known what she needed to do at that point all right  so i think clearly it's a misrepresentation because they did foreclose and this is to make  says we're going to foreclose on your property on october the seventh then the company says to her in this telephone conversation there's no sale date ok that's what they say too and she relies on ok and then the next thing that happens is she seems in the repayment stuff all of that but they foreclose simply that's exactly what happened we have a clear misrepresentation so what are her remedies things where you get really death has been a violation you said she relies on  ok ok what do i do now what do i do next and she does these things they send her the application she before she even gets the application she already had a generic form that she had from bank of america that didn't have bank of america's name on it she used that to give it to him right away on october the third so clearly she was relying right way i'm sorry you are not sure i understand she that's fine you're not the first person standing there with that reaction when my question for you know where you'd be the last but i'm just trying to think in what way doing this for days did she do something because that phone call that caused her to to miss out on an opportunity if you otherwise would have it well as we all know she had she had known that they were going to to present the matter to a court ask for a restraining order there's a there's a number of remedies legal remedies that are available had she known that they were not going to pursue so in our briefs i believe we've pointed out the the what we believe are the errors that the trial court made in its findings of fact and conclusions of law now where i want to go now is what i'm thinking if the court is probably thinking ok well let's just assume for the moment that that plaintiff appellant you are correct the court made those errors in its findings of fact and conclusions of law what does that get us is for as down the road how do we how do we get around the fact of what the trial court said and in several places that the foreclosure ended in was the cause of all of her damages so how can you how do you handle that your time's up once or how would you watch your brief is covered these things are new your brief has covered these things ok i still have five minutes for good morning your honour's the appellants arguments on appeal with regard to causation and reliance focus overwhelmingly on hypotheticals and speculation there is simply a lack of evidence of what actually would have happened had this statement not been made what we hear time and time again at trial in the briefs and just now from mr peacocke is that there are things that mrs dunn with that he couldn't could have done if she had supposedly gotten correct information but what we don't hear whether it be now or at the trial court we have never heard what she would have done and what would have happened and whether those acts if they actually would have happened what have indeed stopped  foreclosure the foreclosure is the harm so where is the link between all these things that could have theoretically occurred and actually preventing the foreclosure that is what the district court focused on in its findings and i think it's absolutely critical that those findings be upheld there are there are a few arguments we make in our brief i'm really just going to mention two of them four reasons why that there was not an abuse of discretion in this case number one there was not an abuse of discretion in denying the motions alter or amend the judgment because the arguments that they are actually making on appeal which are the same arguments they made in that motion were never brought up with the trial court prior to trial if you look in the order in the record  denying the motion to alter and then the district courts goes to great pains to explain that mr peacocke in his brief and now there's a lot of discussion about this distinction between a reinstatement plan and every payment plan that may or may not be is a distinction with a difference but the point is it was never argued to the trial judge before trial and that was one of the reasons given for denying that motion so i think that's one easy reason that there was not an error there was not an abuse of discretion but even more so let's look at the meat of the matter as judge southwick was alluding to a moment ago what actually was the reliance what was the evidence that this statement whether it was false or otherwise we can assume that it was false or erroneous at least  actually caused her to do or not do something and there's when when you look at the arguments that they make i think these concepts or these speculative hypotheticals come into two categories one is that they would have reached some sort of agreement with the service or this repayment plan and number two is that they could have taken some legal action to actually prevent the foreclosure from happening mr peacocke focused at least at first on the potential of a repayment agreement so i'll start with that again this comes back to things that could have happened versus evidence of things that would have happened and in this case the district court fixated on a couple of things number one as your honor mentioned a moment ago that this was entirely discretionary with the service or there was no promise that a forbearance would occur that the foreclosure would not happen the idea was send us this paperwork we will look at it it's got to get approved by underwriting it's got to go through them some steps and we can enter accepted it and here's why it would have all worked out and you would have gotten to keep your house that never happened and the the district court i think single this out saying this was entirely speculative at this point that it actually would have gone that far and i think it's also important to note the district court noted that the application that the service or that my client s m s actually sent them that the dickens was never returned so not only was it not approved by underwriting there was not evidence that an agreement would have been reached the application actually never got there i know there's testimony about a similar application from another bank that was sent in but the district court notes and it's findings that the application we sent them the one document we said would start the process for us never got returned in september it was the there was a there was a form from bank of america that came some time prior to the october third conversation with mr taylor that's the central focus of all of this mr taylor put a new form in the that it was their inability to pay for the mortgage that ultimately caused them to lose the house if we look at sort of that second bucket of potential actions that could have been taken potential legal actions and mr peacocke alluded to them here again there's a lot of argument and a lot of innuendo about things that could have been done they could have declared bankruptcy they could have gotten a t r o but there was never any evidence none at all at trial let alone enough to warrant reversing a finding of fact no evidence that any of those things would have actually happened in fact the district court describes it this way saying that the appellant said that they would have consulted with an attorney but and i quote this hypothetical is unconvincing because they had received foreclosure notices at least two times prior and done nothing they hadn't done anything then so the trial judge weighing the credibility of the evidence decided that that was just too speculative it was too hypothetical and it was simply unconvincing that they would have done something different this time if the that this is not quite some number that she had been told what number to which total of what she told and what would that have done i don't believe there was a number that was given and i think that is some of the evidence that is this critical missing link if there had been for example a statement that all right if you can come up with fifteen thousand then we'll take the foreclosure off and the foreclosure won't happen and then she put on evidence that i've got fifteen thousand and it all would have sailed through underwriting would have approved it that conceivably could have amounted to support a finding that the foreclosure never would have happened and they would have gone to keep the house there's no number that's in play coming from the crime you don't believe there was your honor i don't believe representation was in error whatever did he have to forty to stop before her tour and work out an agreement or was he speaking as a lower level person with no authority to to do that but did did he have the authority to stop the foreclosure or work up some sort of an agreement there was not evidence going into that dept of whose authority i mean is helpful as that would be today what mr taylor said is i'm guessing to this application if you send it back we're going to show this as an act of work out that may at least put off the foreclosure a while underwriting is looking at it and we'll see if we can approve you for a repayment plan but none of that would have precluded the foreclosure from ever happening i mean conceivably that process had she actually sent the form in and we know that she didn't but had she sent it in it might have conceivably put it off a month while things were in process but it's still speculation there's still no evidence that something would have actually come to fruition to prevent a foreclosure from actually happening and that's what the district court got fixated on i think appropriately so where is the link and if you're talking about an agreement the same can be said for legal action there's no evidence that you would have actually done any of things no evidence you would have hired a lawyer to declare bankruptcy or to get a t r o no evidence that it's hero would have been appropriate in this case and something actually would have happened is there any evidence that the usual lawyer prior to the poor closure i believe the testimony was that they had not they had not consult an attorney on previous foreclosure when they'd received i think two up to prior occasions that gone foreclosure notices and hadn't done anything that was what i think helped the district court in weighing the credibility of her hypothetical of saying no i just don't believe her she says that she would have called a lawyer but she never had before and she'd gotten this far before so what's different now that is of course one of those credibility weighing where we must give deference to the trial judge the judge love was there he was able to listen to the witnesses and that is why the the burden is extremely high on the appellant's in this case at this phase they've got to show not just that the a fact finding the lack of causation evidence was wrong but that it was clearly erroneous if it is at least plausible that's really all we've got to show that that finding was plausible something more than speculative which is where we find the balance in this case if it's plausible that finding has to be upheld unless the court has other particular questions i will release my time back to your honor's thank you both make it thank you included the a part of the statute of the texas debt collection act that discusses the what damages are recover now why is it important simply because it shows what the causation is and in my view the i can't point to a finding of fact or conclusion of law where the court say is this is the the standard for causation the court never says the standard but what i can dilema from the decision that the court made was that it was using the standard proximate cause that's not the standard under the texas debt collection act now so how do we know that because the statute says that the person is entitled to direct and indirect damages all right well specifically direct and indirect economic it also you can recover actual damages and mental anguish and all of from law school that it back in the eighteen hundreds then when the courts started to recognize what we now call consequential damages well as you know there's a different standard for that and the texas supreme court has articulated that standard and the standard is is the harm reasonably forseeable ok when he made the misrepresentation then now the of foreclosure is reasonably forseeable so that's where i want to go with that is is to show that even though the court didn't specifically say in it findings of fact if includes as a law the standard that it was using or going to use from my reading from what i can glean from that is he's using a standard proximate cause and he's saying well foreclosure happened so no damages but if you look at from that the statement that the c s are made that the harm that is could be incurred was reasonably forseeable by telling her you don't need to worry no problem now to answer your question that you asked a council about what was the amount that was probably oh dear she tried to find that out a number of times never could but i took it upon myself to calculate it from the statements of the the lenders and it appears that the eleven thousand dollars would have been about seven or eight thousand dollars short so that's what i doing from that now counsel also said that well she never sent the forman wait a minute the testimony was clear that she had a generic form that she used to send shell point the same day october third that she had the conversation filled it out gave them everything and senate that's in the record and last y counsel also pointed out that well what she would have done coulda woulda should've there's no evidence of that in so there's no there's no showing that she would have done something to get some relief well part of the record was that she had mr varieties name that if things didn't go well with this october third conversation that she had his name he's one of my law partners to to do something to try to stop the foreclosure thank you mr peacocke thank you very much of that concludes this panel's hearings