morning honors claygate and on behalf of the appellant miss nancy bess i would like to reserve three minutes for my rebuttal if i may your honors when this abbesses husband passed away she became delinquent on her loan that was secured by a mortgage against her residence as a result of this the defendant loan servicing forcibly entered her home and changed the locks on her home prior to commencing any foreclosure proceedings against miss bes counsel since we don't have a lot of time and i just come to the truth we are course aware of jordan versus nation star mortgage which was decided by the washington supreme court in two thousand and six the that really  applying jordan to this case takes a lot of us off the table what one is left to argue about in this case well your honor is a very good point and the answer is not much what the dismissals that the plaintiff is seeking reversal are this dismissals for trespass and for the consumer protection act violations and as the defendant has conceded in their supplemental papers that jordan decision does require that the trespass claims be reversed and sent back down to the be intentional negligent be you know you went into the wrong house but what is intentional means so if the statute interesting in that it actually defines within itself that intent element and it defines it as wrongful this and specifically it holds that an act is wrongful for purposes of statutory trespass if it if the defendant unreasonably commits one or war acts that it knew or had reason to know that it lacked authorization to do this is is this going back to that earlier or the eighteen fifty whatever statute that they used supreme court relied upon the idea that whatever the case law might have been at the time if they had liked it this earlier statute they would have known it was wrong is that what we're relying on here that is true as part of it so seven point two eight two three  is the statute that i believe your honor is referring to and the legal argument of course is that all actors in the state are presume to know the law and this law and the law that this marine corps enjoyed apparently neither the district court not the washington supremes court were quite convinced that they know the law since they accept that if a certification should departed's have had that great a wisdom that the district judge in washington supreme court well i i couldn't point as to that should add greater wisdom but what i can say is that the pleading stage miss bess very clear consistently pled and this is found it in our eighty one as well as thirty five that she when she learned that her locks had been changed she contacted that when challenge the activity and demanded that they remove their locks and restore her locks so they certainly knew that they lacked authorization to act and that was after they did the act but they continued to maintain their locks and they continued to use those locks to further enter her home and those all constitute intentional statutory what i'm struggling with frankly is that the for all practical purposes this is the law the state of washington and changed they acted based upon what they understood the law of the state to be at the time i may agree with may not agree with it but how can we say if the law was a and they did a and then it changed to be that because they didn't know that it was going to become b that they had intentionally violated because the law didn't change the jordan decision in the mirror and you knew about it i did your honor that's why i brought the case against nations that i was the attorney that brought them all interesting ok i knew about that statute than i did and i also know that after the supreme court's decision in jordan the defendant nation star in that case moved f reconsideration and as part of that specifically asked the washing state supreme court to rule whether or not that was a new pronouncement of the law and should be held retroactive or not and the supreme court denied that so they can see supreme court considered whether it was new law considered whether it should be applied retroactively and effectively ruled that it always existed and is always political and so therefore it was in place long before the other there were any penalties or sanctions claim and do not believe that the jordan decision dictates a different analysis and than that that was done by the district court judge and that would be similar to the breach of contract claim as well as the claim for a deed of trust violation so what's left and so what is left bess's trespass claims that were always pled as well as her consumer protection act violation claim this is that the seventh claim or the seven it is there were in the there were three consumer protection act violation claims asserted the first and the and the one that is subject of from the latest perspective reversal is the claim based on the physical acts of changing the locks which was always pled the second was based on the violation of our c w seven point two  three zero which is the statute your honor was referring to that dates back in the eighteen hundreds and the third basis for a c p a violation was premised upon the deed of trust act and so the plaintiffs conceded that the deed of trust act basis for a violation of  so one way or the other whichever way they go you're going to get as you will get the same result either was survival or or do we both face an early death is that it that's correct and that's consistent with the court's holding in jordan but it's also consistent with subsequent to jordan to federal washington state district court judges have now applied the act of a lock change in the context of a consumer protection act violation and held that that act is an unfair act under washington's consumer protection act and that's  judge chief judge thomas price from the eastern district who is the judge of that sort on the theory that there's a perceived violation is not a violation of his statues of violation of the c p a no your honor the the it is not a per se violation because there is no statute that says it's per se and the washing state supreme court did not hold that it's per se the violation is an unfair violation as both judge rice and now judge khun howard have applied as it relates to the act of a lock change because and as shown by the washes the supreme court's decision in claim v washington mutual an unfair act under the c p a can be demonstrated by the violation of a statute which we have here under our c w seven actuated i zoom this in washington operates like what we have in california is consumer protection that good morning your honour's brian forbes for servicing i do want to address the jordan case right from the start i know it's it is a new decision since the original briefing in this case and while the join correct the intent element is different under that then under the common law trespass and under their rights code of washington four point two four point six three zero it defines intentional what's intent and that is let's  at this stage of the litigation we're looking at plausibility so isn't it plausible that one was aware that its conduct was wrongful and i'm also curious what you would assert  in issuing its decision it had noted that the case are raises unresolved questions of washington state law and you know acknowledging that washington is a lean theory jurisdiction the washington legislature did not anything to suggest that these particular provisions of the didn't trust of data trust or enforceable in fact the weight of authority at least in other jurisdictions supports the the ability of the service or or of the of the mortgagee to take property preservation measures in the event of default we cited to a number of cases again those include some cases from mean three jurisdictions like oregon and wisconsin as well so again we don't think it was possible in two thousand and thirteen when the property preservation measures were taken at least as alleged that could not have reasonably known that it did not have authorization to act to take the property preservation activities that it did some some when there was a supreme court decision addressing a law that had not been defined some two years later and your best case i know you said you get what's your best case on that it sounds like miss bess is conceding at least two of the claims once based on the deed of trust and one is based on the quite title statute itself looks like the one that we need to talk about is the stand alone think unfair or deceptive act or practice but i just my question does the conduct here have the capacity to deceive a substantial portion of the public your honor we don't believe so again in light of the allegations here where the activity occurred in two thousand and thirteen when miss best was in default the deed of trust at the time expressly indicated that property preservation activities could take place in the event of default we believe that that does not satisfy the element of deceit we also know that with respect to the c p a claim she a class action in the interest provisions authorizing our entry appeared to be you know form language implying that other members of the public may have been affected so sufficient facts to support each of the elements of the consumer protection act lame they had a third opportunity to replete and chose not to repeat we think that there have there's been sufficient attempts to do that i also want to point out that we also contend that there there is not substantial injury alleged in connection with the complaint as well while you know again miss bessie admits that she was in default in was in the process of moving out there's some allegations about fees that and that damages you well your honor that that that may be among damages that they are arguing we would contend that again the allegations of this complaint is that she was in the process of moving out she does not otherwise indicate court obviously is i think you can have a foreclosure before you foreclosed and in fact you have the result of a foreclosure by taking possession of the property what does the supreme court said if anything about what a jordan i would i would say your honor that the jordan case does suggest other avenues that the lender can undertake to deal with ways to deal with what i was process not acting individually right there the district court here indeed almost any court prior to the jordan decision would have understood that the law washington was different in so far as the ability to take possession of the property in the way that you did yes i would agree that prior to the jordan decision the law was there was no controlling authority that said the deed of trust provisions were unforeseeable in light of other washington law or any other law even the trial court for back and you make this argument would in on a full record your honor i think that the difference between our case in the other cases that have gone forward as my brother counsel has mentioned those were cases that were some of these decisions to come up with summary judgment for example on the bundy case which was cited as supplemental authority i don't believe that there was a motion to dismiss in the operative complaint relative to certain of these claims we're raising it now just as we raised it before sixty three and western loaned the myth mifflin to ninety seven p seven four three which was decided in one thousand and thirty one both of those cases interpret and apply r c w seven point two eight two three zero two a lender taking content addressing here so jordan jordan in effect from your perspective simply applied what was already the law absolutely your honor and then also to your honor's question regarding the deception or deceptive element of the c p a i want to give you my best case for that which is put on the farmers insurance which is two zero four p third eight eight five and the supreme court of washington state held that deception exists if representations or omissions or practices that are likely to mislead a reasonable consumer occur here the practice is changing the law going to far worse home prior to foreclosure which reasonably leads them to believe they have no longer have the right to possess the property of a question thanks to both counsel your arguments are helpful to us we appreciate it because just argued is submitted