our claim breach gone that's correct roger what while you're there let me ask you is it uncontested that wells fargo never provided any service i thought that in reading the papers in this that because your client paid his taxes directly wells fargo in order to protect its position had to check to make sure taxes were paid and there were no existing liens even after making a loan is that wrong the settlement booklet and the settlement booklet says that the fee covers the cost of your lender engaging a third party a party to monitor and handle payment of your property taxes monit monetary handle monitor and handle so why as i understand it well fargo needed to monitor the payment of your client's property taxes because if you fail to pay them a tax lien would result in impair their security what why wasn't he told precisely what they were charging for with wells fargo never told them never told mr good here is that they would be charging him for any monitoring of it the only definition but you just read me that monitoring the question but i have another couple of questions here and then the second sentence of this tax service the definition states this is done to ensure that your tax payments are made on time it's revenge tax sleaze from occurring my understanding you're not contending in this case that the practice was fraudulent correct we're only looking for unlawful or unfair that's correct so we're really not talking about whether was fraudulent we're really not talking whether it's a breach of contract and it's while so my understanding that your complaint was dismissed w leave to amanda and you said you didn't want to amanda at least you did not a man you just appeal far so i guess where i am and i guess this is the question that i most want you to tell me what where do i look to find the hud to booklet the booklet that you claim is what you're worried about has anything to do with your if you will involvement with wells fargo all i know you is that the federal government requires wells fargo to give you a hard booklet all i know is you have a contract with wells fargo but you don't plead breech i don't find any place in the law that says that what's in this booklet is appropriate for wells fargo how i don't find any law regulation or whatever that suggests this had one hundred booklet has anything to do with this case i look at it this way your honor if this was not a real estate case a settlement services case but i saw you know what i was a talk to me about that tell me what law what regulation what something common law state law statutory law serves as a as a reason that wells fargo as anything to do with the hud booklet twelve wells please because well our go they block claims are in fact as i understand it one state law claim that's a u c l claim which is we're only honor unlawful or unfair and when we look at the rest the regulations require accurate disclosures in the settlement statement in the summer cost of the bait and it requires a settlement cost statement to accurately list those charges the tax service fee on that point i'm looking at your two twenty which use your settlement and hard ones and if ports to list various charges that are part of the closing and i'm looking at line you know six tax service company and there's an amount there are seventy six in that particular case and then there's a definition line eight o six is the fee paid to a sex service provider for information on the real estate property taxes what do we do with that that that statement which is example of a sample of one has to be read within the context and has to jibe with the definition of the relying on and then the explanation in line to the six of the actual settlement document which says provider for information on the real estate property rights i think they have to be read together and they have to be r borrower to provide wells fargo but that's the case not the issue here the issue here is whether or not they have somehow violated the law by telling you that we charge for monitoring and making payments and in your case only monitoring applies and we're going to pay somebody to make sure that you've made your payments on time what's misleading about that well that's not what the that's what the stick that's what the definition says well what is the definition says monitoring and handling if i hired you to drive drive me buy me lunch and take me to a ballgame and you only drove me i still have to pay you with nothing right but only a portion of it because i should only be paid for th with that theory is that there's nothing to support it it's contrary to the case law to the parties contracts and to rest which comprehensively regulates this area of law and all these regular all of these sources of authority word handle in particular is troublesome well first of all that's in a booklet that i think it's been alluded to earlier is promulgated by hud it's published in the federal register was fargo has no only sort of booklet that is supposed to break down various fees including tax service fees in a way that borrowers can understand and there are instances in which handling will occur even on lo agreement i don't know if that's in the record your honor so when when when mr good t r s signs the papers if you will and let's put aside you trust because that comes later where one document which are right the one document goes to somebody earlier and what does it say what's the line where the with the with these fees or disclosed it says why newdow six is used to record the fee for for reporting and verification right so i'm just trying to figure out what a borrower knows when he signs up with wells fargo put it aside with one hundred booklet says he sees something he's gotten a good faith estimate which says there's a ta what else would he signs on the dotted line does he see about this stuff he gets the booklet he has the that line in the good faith disclosure what else is there i don't know if there's anything else from the record that they would necessarily receive regarding the tax service fees but i think the hud one is really the key document that's what the rest is that's a document that under arrest is designed to lay out all the various elements chargers and for information on the real estate property tax yes and i would also point out that the booklet itself references that disclosure and describes it in the same way are when i what do you do that's page two twenty of the service what about covers the cost of your lender in gauging a third party to monitor and handle the payment well that's in the glossary of the settlement booklet as has been pointed out already that booklet are trying to equate handling with the payments of real property taxes and that's not necessarily what it means it could mean that the tax service company assists in the payment of real property slightly different question i know that the high booklet doesn't have the force of law although it was part of the information you gave to mr gutierrez is the hard one document it's preprinted one form could have offered a separate disclosure feel radically that that's possible but i don't think it was under any obligation to do so i want to me ask one more question about this i don't think in this case and i'll ask this too there's any allegation that there was an oral representation or that there was some something misleading said in the negotiations we're dealing so here with the documents are we not that's my understanding i don't believe there's anything left regarding oral station i guess my next question is seems to me that counts is already suggested that he's got rid of fraudulent so i'm looking at lawful and i took him very much down that line and i don't think his a remains and saddled says graham so i guess i'm trying to figure out in this particular instance whether it is unfair what happened in this particular case given what you gave in the you in the hud one and was that why that is not least something we should not get rid of on a motion to dismiss it's not  on public policy and so i guess i'm trying to figure out whether there isn't some at least regulatory provision which would suggest you ought to modify what you're saying in these particular matters such that somebody isn't led astray as far as this place i'm not aware of any such regulatory provision in your honor and i don't believe one is has been cited  dollars a year and mr blot alluded to the fact that whilst fargo also has authority to request that the borrower submit proof of tax payments but it didn't do that here it charged the two dollars a year in lieu of requiring mr gets here a submit proof of payment twice a year get stamps and mail that to wells fargo he doesn't have to worry about any of that and i don't think there's anything unfair about about it she dollar charge but isn't that really an argument for a question of fact for jury not something to be determined on a motion to dismiss what's my best precedent to suggest that even your good argument here is not appropriate for a motion to dismiss there are a number of ninth circuit cases that to resolve but the question of unfairness on emotion is yes it is sometimes a question of fact or crafts even more generally a question of fact but it's out a concept unfair i'm glad i never had to interpret that night i hope it's not a very good and not a very easy law to effect and i'm trying to figure out how one on a motion to dismiss standard putting everything in the light most probable for the plane of that i can say it isn't fair well i think you have to know is to me i'm going to have some legal having to submit proof of property prices property taxes twice a year throughout the life of the lung and it's also authorized this is we point out in our motion to dismiss our i'm sorry on our on our request motion for judicial notice mac's servicing guidelines also expressed we recognize that the lender has this option in lieu of requiring proof of tax payments so it's authorized by the contract and freddie mac's servicing guidelines and there's no law that provided by wells fargo wells fargo does provide one hundred one but this is an actual hard one this is just the a sample of the section of the one that relates to these various closing cost is there faith your honor the case boils down to whether or not wells fargo provided the service that it stated it was purpose to provide on the settlement on the one settlement statement and that settlement the case also has blanks on it for vishal settlement charges and so wells fargo if it wanted to charge a nearly verification fee for non escrow borrowers it could have listed this is to ensure that your payments are made on time and to prevent the tax liens from occurring i'm not sure where is the implication here is that they're doing it themselves and not using a third party though the reason is because it they can't verify payment before the