i would like to start out by just talking about this escrow waiver which this case is really about and i believe everything flowed from the in two thousand and three he applied for and received a texas home equity loan he made his payments on the loan was up to date and on december the sixteenth of two thousand and ten o'clock when the service or at that time paid the taxes for the two thousand and ten taxes even back of the tax form it says that you can it doesn't become a lien problem until six months after their due this began the problem that we're here on today i want to look at first the escrow waiver because i think there it's one of the facts that this court should look here well rested for is a reverse every man because we believe there are factual issues that should be decided by a jury and ultimately you know he has been living in his house without paying any mortgage for some time ultimately how would this case resolve if if everything went the way you wanted to well what we'd like to happen here is course the reason he's not paying is because i understand that he but stepped aside the fact is money was owed that hasn't been paid everybody agrees with that regardless of the escrow issue so i'm asking you if this case proceeded if you were outlining to your client how is this case going to go optimally what would that be it would be we get a fax of the terminations that the escrow waiver was wrongfully revoked and that damages came from that we believe also the rest of the demands that were made at the trial court dismissed we believe that the company when one of the representatives denise was his name told him where to send the the rest of the man and he believed well that's the new can come back ok welcome back to the rest but i think the main thing here is the the escrow waiver we believe right but i guess what you're saying is then you would recover damages and those would offset what is quote legitimately owed on the loan or what would happen to the loan is one of the what we would like to do and we've done this many times is take the arrearage and put it on top of the loan so it's not due until the time of sale so it doesn't affect the payments so that it's not affordable so we want to make it affordable but we want this escrow waiver thing out of the way as far as we want to get back on an escrow waiver if possible and because we believe if the court when the jury back in dallas would say that this was wrongfully done then we believe we have a chance for getting another escrow waiver but what happens to the amount of money owed today in other words the and i understand why he's not paying everything but there's this period of unpaid mortgage payments regardless of the escrow that would be due what happens to that it is put on top of the loan what we with qwest as far as settlement of that put it on top of the loan hold it there until time of waiver which was signed by mr we spec when they did the home equity loan back in two thousand and three if you look at that the let the second to last paragraph it goes into what can happen  quinn would revoke the escrow waiver and it says in the event the borrower fails to comply with any of the above conditions then the quinn could those taxes were paid off in two thousand and nine so first time he'd been late on taxes but he paid there was no lien involved and he paid way lady didn't pay when due he paid a month six thirty two thousand and ten and the facts in the case and that's what we want them to be able to have a jury look at the auckland did not take over the loan as a service or until august of two thousand and ten but a month a half after this tax problem with the two thousand and nine taxes aqua we believe did not even know there was an escrow waiver there we think that the  about the taxes in zero nine came up later and the reason we know that is i took the deposition of the corporate representative of auckland and let's take a look at what the corporate representative said that in the when she says on two thousand back in february of two thousand and fifteen that essentially the i ask them about what their procedure was when they took over a loan that had been worked by other people and she said here's my question this is on page nine thirty five of the record we're not going takes over the servicing of the loan do they look at the history of the loan to understand what payments have been made in the past she answered no they just basically we get service and transfer there's a process that things go through the information from the prior service or system then down to one nineteen we are told by the prior service or that the information is accurate and correct and that they service the loan correctly and we rely on that statement i ask then so the quality checks that you you got from the prior service or indicated that mr we had made the payments on time and was a good borrower correct she said  wouldn't have looked and it says on page the next page we wouldn't have looked and made sure that he what his payment history was we would have just looked to see whether he was current at the time auckland began service in it and he was current so that was their examination of what the fact that he was current on his payments doesn't change the fact that he didn't comply with the escrow waiver agreement he did pays taxes when they were due that's another fantasy ok i used to teach english before i went to law school and if you look at the waiver back and the devil's number six it says all real estate loans all real estate taxes are paid when do the evidences furnished to a lindor at that time are i believe means present tense and in the future when auckland took the loan over in august it had been a top would not step into the shoes of their predecessor so if they if if their predecessor had a certain right yet repeal the escrow waiver agreement based upon the failure to pay when do does aquanauts step into that shoe i think it's a fact issue for the jury why is that a fact issue why is it when you take over a contract you step into the shoes of the prior contract and party because if you look at section nine of the security agreement the deed of trust it's that they can do what are reasonable and appropriate means to protect their interest so when i hear reasonable and appropriate i think that's a jury issue yeah but we don't need a bunch of like imagine thoughts here because we have an actual agreement this very specific yes it says hey this is an election not to collect escrows and should it be deemed a waiver of lenders rights to do so at a future day one two in the event or fails to comply with this specific list not just vaguely anything to do with the loan then they have the right to do this and so it seems to me we don't have to look at what's reasonable or appropriate they've been given this right whether it's unreasonable or not to not to revoke the waiver if you will of the escrow and then that puts us back into the escrow world that's in the main document because the judge decided it was it was unreasonable you said no i'm saying in this matter whether it's unreasonable what i'm saying is reasonable and appropriate matters if the document doesn't provide the remedy or doesn't provide the situation then the question is was it reasonable pro create what they did but here what i am saying is that the document itself says if you don't pay it when do we have the right to  account the reasonable or not i mean doesn't say that part but it doesn't have to when you have a specific remedy and a specific document that's in a dent into a more general document you follow that w basic contract and strongly in relation to the whole document the whole document is the deed of trust that gives the power to the mortgage company in the servicing company and that power is to revoke the the escrow waiver which they didn't do properly by the way that's a separate court it's a whole other question but this specific way says lender has the right to establish a fully funded escrow account it doesn't say that has to be reasonable so even if it's unreasonable they have the right to do it or section nine of the security agreement says it has to be reasonable and appropriate they say that's the language they have met i'm saying that's general language that i'm not i don't i'm not convinced and maybe with your english background you can  language i speak but maybe i can still learn something at it even with that when you have the specific it controls over the general so why wouldn't the specific of the escrow waiver control over the general of the reason more appropriate even assuming that what they did was unreasonable has i think i said does say which you say it says i say says are which means prospective in the future instead of if they had been written has been paid when do ok we are all over the place your honor i believe that's one up in section nine whether or not because the trial in tennis we've talked a lot you've got a minute to talk about anything other than sectional ok the what other sections do you have a tribal issue of fact related to as far as the way the excuse the waiver is supposed to be executed it's supposed to be if you read the the language carefully of how a the waivers posed to be executed they're supposed to give notice of revocation first and then upon notice of revocation then an escrow account is set up for the borrower so they're supposed to give notice of revocation and you understand them to waiver has to be done first and then upon that mean after then an escrow account is set up why is it that way it is so that the homeowner will know that he doesn't have an escrow escrow account that within the so so you're saying it's effective notice to do it six months after you her vote well there is if you look at the escrow waiver agreement although mr very good would like to impose a revocation provision in there there notice that sections three and nine are relevant to the escrow waiver agreement then what i'm trying to understand is the argument that the june document gives notice of what you're now doing in other words before june you hadn't actually charged in the right ok but we're past that of saying assuming argue enda we disagree with you and find that there is a notice requirement then you have this june argument so explain to an argument is it that you are giving notice of something that already happened are you giving notice and now we're going to notice is triggered just because the payment wasn't made the ability to exercise your say so you could sit there you can't sort of waive the waiver if you will so what you're saying is that you're sitting there knowing that they've been untimely and you're putting up with it and then you go no is that appropriate notice to give it six months later and my question was it didn't seem like you were collecting it until then that's correct and so that's what you really have to give notice of is that we're changing the world we're not just setting up an entry escrow account for fun we're now filling it with money from you mr weeks and that's what happened in june ok and you didn't start trying to collect the money till august right after the gene and spread it out over time but it wasn't retroactive future right i guess to let me come at it again if the taxes for the year would be four thousand but you have four men's left of the year when you give notice you because acting a thousand a month on those taxes yes  user gets a bonus in some other month or whatever i mean people make money and weird ways sometimes they have like maybe he sells easter bunnies and so he gets a lot of money in march or april me i don't know what's affordable for him month to month i do know that when you take and therefore i mean the right to question why we're a little like this or have a little trouble getting where we're going with your cause and this is to seem like it to me five minutes just even get to what you were charging him so i make it and you can see why this is confusing for him not sure i understand he didn't hold back with the prior service or and in the end they didn't revoke so he doesn't know until that first letter and at that point the point is the money you are claiming is very agreement as an addendum to this security agreement is subject to the provision in section three that says we can waive that we can wait we can rebut we can wa this we can waive this section three and when we do we can revoke that by giving notice that seems to anticipate the document that is the infamous six six six actually starts off as he's under section three that he's supposed to make the papers then it's as if there's a way i'm aware that i'm looking at it and but it says at the end if there is a waiver which there is here then with notice we can blah blah blah why wouldn't that be a modifier to the escrow waiver agreement that itself doesn't anything about notice if you look at it says that they can impose a or agree to a waiver any time in the west and so your reading from says they may revoke it at any time it doesn't specifically tie it by a notice that talks about the means to do it that's correct but doesn't talk about why you do it we're going on and i'm worried that's great but now we're to dismiss you of the notice being given by your admission six months away and then glom and all this different money together into a four month or  five month period you know you can i would depend on those not only because of the revocation is not required to exercise the rights under section nine and pay the taxes in december there's nothing in there it says you got to give notice to be that if you read a sentence as triggered by if they for fail perform the covenants and agreements contained in security then you can do whatever you need to do to take care of the whatever you need to do to pay the amount that wasn't paid not to create an escrow for all future  honestly i find it shocking that you got your hair i mean i saw a lot of these kinds of cases as a state district judge and i would settle long before you get to this kind of position it just seems very odd to me that you're here it's not i'm not going to get in the middle of that it's not my place to settle the case but i would just simply make that comment that it's very odd that you haven't been able to work this out one of that you go ahead make any other argument you want to make will decide the case on the law and i will not consider that point at all but at the former trial anees just bursting out a little bit with that comment the president of the islamic when cases are difficult for that reason because there is no personal recourse throws a monkey wrench into the works and so the only rights you have as the under to collect are going to be by foreclosure and that's what we're here well the payments have not been made you know i had a case once where we settled for some money and an apology you would have ever been able to get an apology out of a jury trial but that was part of the settlement yes anyway again neither here nor there will decide this case on the law and the facts and under the standard view present is there anything else you want to present  us i think we've hit the crux of what the case really is about in the court's eyes i think that's a threshold issue and i can get into the other finer points but i don't think that's going to aid the courts in difficulty here today so i will give you the time ok but so he didn't really know until two thousand and eleven that his that his escrow waiver had been revoked and then all of a sudden he owes all this money that his payment went up from six seventy five six seventy t about thirteen fifty which for somebody that doesn't make a whole lot of money that's a huge increase so now he wants to know what the deal was and then he starts writing the rest of the letters and  he called after he didn't get a very good answer after the first restful letter and denise at auckland told him to send it to the springfield ohio address since his send his letter and so he did and he still didn't get a decent answer about why his payment went up so much about this reasonable inappropriate i'm looking at this is on page nine seventy eight this is the discussion in judge s order saying that when he talks about reasonable and necessary he says this is on the first paragraph in a discussion of in his order a such breach allowed auckland to do what or appropriate security have reasonable or do whatever is reasonably necessary to protect the languages reasonable and appropriate is what the actual language is or what they did because they're supposed to let him know first that it's been revoked then set up the escrow his status today yet here was a balance let's see we have since back in two thousand and twelve i think we told it up i think they made sixty four thousand dollars payments to the mortgage company during the time up until all this controversy came up and about fifty eight thousand of that are going to interest so that's true with all they have been making their payments these are good people that want to sock when claim is due if if foreclosure were allowed to proceed and they wanted to stop it by paying what would they have to pay they say that i believe it's about the total bill right now i think it's one hundred eighty thousand something like that and as i said earlier what we would attempt to do is put that on top of the