the answer is no although the defendant in the summary judgment cycle alleged yes meaning we went through the discovery process in the september letters at issue in the complaint where the initial letters and then the fact sent and there was an august and september letter but the point that said that there was only a september letter in the defendant argues that there was both an august and september letter that would be an issue of fact that would have precluded summary judgment in this case and would have one i can say that it would be a question of fact the jury as to whether or not there was an august letter i don't dispute that there is one in the record but we would end up with very different decisions  it needs to be confusing but not with respect to section g which states enumerate certain elements in the letter therefore there it's affected a violation mistake or out of the we sophisticated consumer standard the least of it's getting consumers not aware by definition of their g rights so where the letter to have omitted the validation of language in its entirety and just have a blank perhaps even a blank with a square where the collector comes in and says it was a mistake we should have included that language but we omitted it by accident that would violate g but that we sophisticated consumer would not have been aware that they would have had those rights in the statute requires that language and requires certain elements in a g letter and mandatory your ally in our decision in par then gordon well then gordon says the same thing that a strict liability statute we could go back to heart we could go to russell we could go to every single district and circuit court in the nation just go back to th the august letters with initial communications between them and are in the plaintiff's but this is the key issue and this is why is is up on appeal the court reached this conclusion however of course the court concludes that even assuming argue wando the september letters with the initial communications the letters do not violate six hundred and ninety two g and the court need not address this issue so the court recognized that there was a factual dispute between the parties  these exact same letters out issue out on the street none of them will recall none of them were modified so we're still stuck with the singular issue if it's a question of whether or not g because the mistake was a demanding twice the amount that was owed would be obvious that's an error because g requires that the amount actually old is stated in the collection letter and that's consistent with this court's decisions in a number of cases including harlan so when you marry a strict liability statute with the requirement that the balance and the amount to be accurately stated i any evidence contrary example an affidavit where they said we never see he's not a show i will look at the record between now and then but i don't believe that to be an accurate statement we both six how they were consistent so if they were consistent because the lawyer says no but they don't put anything in the fifty six point one statement and they don't put in an affidavit to contradict it that means nothing to me and a stand we will we thank you so you've reserved three minutes is sub may please the court my name is cindy alone your honor i came in on appeal but i know the record very well the my client submitted a counter statement of material facts which said that the aug th letter was the st letter and that's found in the appendix one  paragraph eight and we said write them that there was the existence of the august letter there also was something interesting that was left out my m interactive torn responses that was not included in the appendix even though they were aware of it because they included the rd amended responses to document demand was in the appendix however in our rd amended set of think you said is come up with one bit of evidence to counter we had the in house counsel from an already submitted an affidavit saying there was an earlier letter that was august th and we provided copies of the letter  they're saying that there's an issue of fact for trial but there's no issue of fact that was created on summary judgment they could have put in the affidavit of the two plaintiffs saying we never received such a letter does it matter if the plaintiff never received it does not matter that this is the mailing rule the mailbox rule that says that it's to be considered to have been received five days after mailing unless there's some evidence shown to the  but there's their sole claim on this appeal is as a g claim they've recently i don't know the answer that you're on i've never seen that questions addressed before i've been doing f t c p a defense for twenty years i've not seen that issue addressed before but in any event that evidence wasn't put in in any event we don't have the plaintiff saying we never received it there was absolutely no challenge to our statement we said here's the letter here's the affidavit saying that this is the letter that went out st we p contains the september september notice contains an extra line which says that there's a line which is what the debt is there's a line underneath that lists that again it's very clear that there's an error there and what that addresses is the confusing aspect of this case whether the lease sophisticated consumer would be confused by that that nd listing is the exact same amount to the penny as the one that's above and more importantly when it says date of service the st line gives the date of service the nd line two hundred zero alerting anyone to the fact that this there was no date of service here in addition survey which we did we went back to the twelve thousand five hundred dollars letters that went out not one person paid double that was not one dollar payment and plaintiff counsel at the at one of the earlier arguments in the case said that they believe that a survey would be absolutely helpful it would be a good indication they asked if however the survey comes out with that be a good indication as to whether consumers would be confused and they said oh absolutely it debtor was confused in order to figure out for us to figure out if the debtor or any debtors were confused we would have to listen to the recordings from all twelve thousand five hundred dollars individuals and all the recordings that are worth basically tens of thousands of calls so we were not in and but but there was no way to search for it because there's not a uniform way that they would code such a thing we just know that nobody was confused to the point that they did send in and they said that there were  you know the red i think a big thing is the red flag of the service state also important i think is the fact that this was a debt for visiting a medical center a doctor i think that you know you may not know how many times you went to macy's and made a has the right test but we're talking you're describing is a careful consumer so what we've got to keep in mind is that the test for whatever reason is the least sophisticated consume about whether consumers started before me yet because it it had no real way of doing that other might be role so i think i think it should be pointed out though as well that there is there were a couple of cases there was nothing in the  circuit that i found other cases which that provided that the person had received an earlier letter with the correct amount that the nd letter would not be confusing or mean this is why we've been asking questions about the initial community by august i think also should be pointed out that they plaintiffs waived their e m f claims here they said they're just going forward on appealing the g claim this is not a g claim because it's g claim relates exclusively to an initial communication this is not an initial communication they consumer who's been to the doctor is going to know how many times whether they went once or twice certainly they may not know if they went four or five times but they're going to know if they went once or twice and the amount is exactly the same too down to the penny  communication and they presented no genuine issue of material fact that would require us to do you know go further on this inquiry why didn't they have people have their plaintiff put in affidavits they put in nothing they didn't catch it and i find it disturbing that the  appeal just the g claim is that they were very clear about that that they dismissed i don't know why that was waived but they waived their e m f claims and relied solely on the cheek time i think because i think because the the e m f would ask whether the is misleading and the court found that it was not misleading but she claimed under g very specific the accurate amount of the debt must be set for us charge it right i mean we can then argue about misleading doesn't matter amount was was set forth when it's a tougher argument because they're not looking at whether the letter was misleading so my argument about zeros and everything else not really relevant to just that was the amount in there but this is not this is just simply not a g claim it absolutely is not  start on the premise that the pilots are saying these are the communications the st communications and we received from this defendant and then the defendant says yes to that twice and then a rd time says no we found to based on everything that transpired in sequence that went by he went to pieces because we have two verified from their clients signed on the penalties of perjury i'm not making the we we made this motion for summary judgment based upon defendant's proper during discovery in there are speed responses to our production demands which were modified also on the nd submission there interactive tori's which we responded to twice that these were the initial communications we would not have made a motion for summary judgment if they had suddenly produced these august letters it's actually not really perfectly plausible or the the reproduction required to come from our office asked for recount history the account notes and any communications between the two parties it's not a large quantity of documents we did that to both plaintiffs and neither plaintiff was in august letter we got responses from them to our we got amended responses to our pay we got responses to our file  amended responses to our by so where did these august letters that had not been discoverable for two years suddenly appear from is part of this process quotes initial written communication defendant's discovery response meant that the september rd collection waters are internally considered initial written communications defendant served the rd amended response to pointless st set of interactive tours of responses where they produced among other things other quote unquote initial read written communication sent to point their prior to the september rd letters and aug else and here i was searching through the record where we're sitting here because i have a distinct recollection that they were in the reply papers affidavits from the two clients that was with the initial communications but i don't see that as a what if you find something