that one three dash to two to five melissa downey at all vs federal national mortgage association argument not to exceed fifteen minutes per side the knesset the fluker for the dismiss and the post did plead backs supported by exhibits to meet the standard now a lot of the argument by the appeal way was with respect to the post redemption remedies available to borrowers michigan does provide for calls redemption remedies as long as the borrower is able to establish fraud irregularity accident or mistake in the foreclosure action and that has been established in this particular instance by way of a brief factual background the appellant in this matter were in a rear itch they paid over fourteen thousand dollars to cure their rears which put them in a position to be eligible for a modification under the federal ham program they began their review with b a c home loans they sent documentation back and forth then there was a cease of communications between july two thousand the love and august of two thousand so during that time period they're getting no communication and even more interesting about this is that after that merger process was over after they saw all these people home at the sheriff's sale they received correspondence from bank of america say emphasized that the case cited in the brief by the appellant was a california case because at that time we didn't have a michigan case and therefore was in applicable the since that time the six circuit this court has actually published a case and that's mc the federal home loan mortgage corporation seven forty three thirty one forty nine it was sixty six was sixty seven they specifically states that federal statutes can be used  establish state law claims and they rely on the seventh circuit decision we got the wells fargo in a six seventy three f thirty five forty seven a five forty four which specifically states in the us that was modification plan where this week that actually sued wells fargo for the failure to evaluate and modify the law and they said in that case which the six circle adopted that you can bring state law claims based on the federal law which is exactly what we did in this case our whole issue is that there was a duty to properly evaluate this amount and if you look in the records he was he actually attempted tash to him guidelines that prohibit under section three the referral of any mortgage loan to foreclosure before there's been a complete evaluation even if you don't are eligible they should send you a denial letter nothing was ever provided to these people the support of you really get a victim they get a they try to argue the bank of america was the service or by success or by interest to be a see home loans so we're looking at the agency relationship here which obviously makes fannie mae liable as well as the the agent service service are generally service along because you have to have a record assignment in michigan foreclosure law to be able to do anything with the law that's the kim case us case law from the beginning you have to have an assignment to be able to fo this be a see home loans was the service or in the server there has to have a recorded interest in michigan in order to move forward any type of foreclosure action or any action whatsoever and at the end of the day once there's a share say the journey there quick line back to the investor and as i indicated there is an exhibit in my brief this shows the relationship between these services are and the investor so it's not like fannie mae just got their interest for the first time the quick that and pretty much indicates that you can move forward on state law claims to be the contractor tort claims additionally we have a major issue with the statutory compliance under him ceo six hundred thirty two zero four one d in will this foreclosure notice was actually a pretty foreclosure notice there are no pretty foreclosure notices the michigan is the foreclosure notices posted to your house is published before some second two weeks pursuant to statu america and how somehow even the losses b a c bank of america was actually standing in the shoes again the argument fails it fails for numerous reasons because the bank of america didn't have any record of simon which is necessary to foreclose to be a c home loans does not survive the merger so they specifically say that in number two there was never any falling under the michigan business corporations act to say well for purposes of this we're going to use this name  decided on december twenty first two thousand and twelve after the falling of this but it's been referred to a lot and i think it is applicable to address so as a general merit matter a mortgage you can now foreclose the mortgage before  region all assignments of the mortgage or do record bank of america didn't have any assignment record it was so ever be a c is a not exist an n a t f a time they did nothing to far with the michigan business corporations act to perfect a cure in the of these instances so for them to move forward is not just a violation of the mortgage by advertisement statute but this is a violation of the michigan business corporation and basically making that law nullity because they are complying with it so the bottom line is that we have irregularities in this process and we have violations of the law and i want to briefly address the issue of prejudice because that's very significant they are you there's no prejudice to the borrowers that's untrue but first of all i would like to indicate that the kim case was decided in december two thousand and twelve it was after the following of the plainest complaint which was dealing with who they thought was a b a c now they all know whether they were doing would be a c representatives or bank of america representatives all they know is they got no response into this whole merger process is over and they had  sold their home then bank of america's sons in the letter say here's your single point of contact we have finished this is in place that is prejudice because had they been contacted if they have followed the him guidelines they that reference quite a bit involved bank of america in a i will try to refer to it as bank of america but i'm so accustomed to referring to it as banna so if a by slip of the tongue for to its ban i'm talking about baker america in a there or based on my reading of the appellant's brief and their complaint there are three bases in which they seek to set aside the foreclosure sale and in this case first they say that there is a lack of standing because b a c home loan was the foreclosing party but it wasn't in existence at the time and there is no record chain of title for four bake of america because there is no assignment secondly they they claim that there was some impropriety in the modification process and  is spot on there that there is an issue because the way i read the complaint they are they seek to set aside the foreclosure sale and then they have a separate claim that is free standing claim for negligence which i assume is a claim for damages that claim for negligence is asserted against fannie mae fannie mae was not involved at all in the end the negligence claim is based on the modification process you either fit facts in the record make it look pretty by the facts and the record or i don't know that they have facts in the record about what happened in the modification yana other then well exactly allegations simply suggest that at one point they say they were not reviewed for modification at another point in their complaint they can see that they were in fact reviewed for modification and denied for modification or in do not the modification was denied at another point they claim i i understand it could be confusing yana but whether it's the whether it's a basis for setting aside the foreclosure sale is a completely different issue and i think that i would submit that it is not there is  actually the mortgage yes that's that's correct that's correct and the in two d that conducted the proceeding with the foreclosure appellate suggest otherwise  and they make they spend a lot of time in their brief arguing the issue that b a c home loans did not exist at the time of the foreclosure we don't dispute that b a see home loans merged into bank of mention the make case make versus federal home loan mortgage corporation that this court dealt with a very similar issue where the b a claim that freddie mac had violated their due process rights in the foreclosure process and this this court held that because freddie mache was not a party to the foreclosure he could not be held liable for for any procedural defects during those proceedings that's exactly the case here fannie mae was not at all involved in the in the foreclosure proceedings that sinning the notices or conducting the modification evaluation or dealing with the once the lender the the mortgage e has foreclosed on the property and a foreclosure sale has taken place the homeowner has a certain amount of time six months in this case in which he or she can redeem the property the foreclosure statute provides that after that period of time passes the homeowner loses all right in title to the property there has to have been recent cases that come out of the michigan court of appeals that suggest that the the previous state of the law where there was an opportunity for homeowners to seek to to to equitably extend the redemption period to two to try to recover the property or to set aside the foreclosure sale that they could do so post redemption upon a showing of fraud irregularity a couple new cases recent cases from the  court of appeals suggested that that the tide is shifting and that bar is being raise higher to the point where post redemption there there is no opportunity or was to to which i'll just mention briefly for the court to consider the first is brian v j p morgan chase bank two thousand and fourteen westlaw one three nine four seven eight two in which the michigan court of appeals reaffirmed its preet previous holdings and unpublished opinions and this is a published opinion where it said that once the redemption period expires the homeowner loses all interest in the property and in fact that the  court says that they lose standing or the right to challenge the foreclosure in a case even more recent than and that this is an unpublished opinion from the from the michigan court of appeals deadly versus bank of america twenty fourteen west law two one one eight two three three the michigan court of appeals goes even further and says although a clear showing of fraud or irregularity allows for an equitable extension of the redemption period the redemption period cannot be extended once it has expired and i would submit that this suggests that any assertion of fraud or leg or irregularity in the foreclosure process must be made before the redemption period lapses in this case the redemption period expired on july tenth two thousand and twelve it's undisputed that the appellant's made absolutely no effort to challenge the foreclosure before the redemption period expired or to redeem the property within the redemption period in fact they did nothing until fannie mae sought to have them evicted from the property and in the eviction proceedings and state court even if we set aside the two new cases that suggest that any showing of fraud or irregularity must come before the redemption period expires i would submit that based on the pleadings in this case in the record evidence the a pellets have not offered any allegations sufficient to satisfy the the very high standard and this discord has has has has recognized that it is an extremely high standard and said regardless of whether you refer to it as an issue of standing or as a marriage determination the the the the standard is a very high one that without a clear showing of fraud or fraud or irregularity in the foreclosure process itself it can't relate to something outside of the foreclosure process it must relate to the foreclosure process itself if the book homeowners cannot make that showing they are have no opportunity and cannot have a foreclosure sale set aside there again two issues that the appellant's appear to rely on to attempt to set aside the foreclosure sale the big of america did have an assignment but as a preliminary matter they stayed in their their brief that if their positions are are accepted that the foreclosure sale is is void and that is an absolute will not void and the point the homeowners have to show that there has been some prejudice with respect to whether  or irregularities sufficient to set aside the foreclosure sale the district court correctly held that they had not the certificate of mayor emerges showing that as of the time of the foreclosure sale deed quite easily cause review of that shows that bank of america was the foreclosing party and in fact it says bank of america as successor by merger or as a successor it enters i believe to be c home loans the quickly indeed is from bank of america to fannie mae these documents conclusively show that bank of america was the foreclosing party  the notices that were sent similarly reference bank of america plaintiffs have not and they cannot raise any issue with respect to the validity of the merger between a bank their in their complaint and here on the record today that bank of america was also the service are which under the michigan statute in titles them to to foreclose on the property as a service or or as the owner of the indebted council raises another issue about whether bank of america was required to to to file record an assignment of the mortgage the dischord held that that is not a  requirement and the law is pretty clear that it is not a party acquired a title to property by marriage merger is not required to record an assignment in addition to the cases that we've cited in our brief the the this particular issue has been addressed by the michigan supreme court in the kim case and kim vs j p morgan chase that's been discussed here can recognize the becoming law understanding that a mortgagee cannot battl control by valley for close by advertisement unless the mortgagee mortgage in all assignments of that mortgage except those affected by operation of law had been recorded the that court this michigan supreme court recognized that a merger is a transaction by operation of law if there's any doubt about whether that the holding in kim demonstrate conclusion there is a case of the michigan court of appeals grey vs citi mortgage two thousand and thirteen westlaw two forty nine five one one five where the michigan court of a  party which is the point and that is specifically one of our issues council has kept saying they want this you want this court to set aside the sheer deed know what i want is this court to reverse to twill be six so we can have discovery home loan service or i will continue to work with you with the work we started previous your previous manager which was way back would be a c with the same go pursuing every available option to assist you with your home lo these people were doing what they were told to do and that sitting on their hands secondly i would like to address the issue of missed the clock or just ask this question after the foreclosure sale a player had a six month statutory period of time in which to reduce redeem the property when that period expired the dalai lost their right title an increase in the property as a result the former owners right and title to the property are extinguished how do you meet that challenge that is exactly why you have the exception this day if you can show from irregularity mistake or accident and even the new cases just cited by  they were trying to redeem extend redemption no we're trying to establish if show the irregularity in the state that obviously we're only in this transaction because of the merger of bank of america and b a c home loans in the zero four d one you have to have a valid clock and we believe all of that these discovery in that this is not motion or scenario that is appropriate for a motion to dismiss thanking the counsel of the case will be submitted