fargo and cured any proud fall since that time the marshes paid ten thousand dollars down as required by wells fargo as their additional payment on the loan modification and monthly mortgage payments made timely for several months beginning july two thousand and nine through march two thousand and ten in january two thousand and two and wells fargo purported to deny the loan modification agreement when injunction is viable but there's still a clave i believe that's viable for declaratory judgment that the statute of limitations has run out well they can't give you back the house i understand and and for what it's worth we agreed to a short transfer stated it was the quote unquote new service or effective december of two thousand and fifteen that's the only document that the appellant's of ever received serving as a less is the suppose of mortgage service or reply brief in which the plaintiff there claim the defendant a saw of actually a declaratory judgment when the defendant they claimed it was a mortgage servicer the court went through the valises under section fifty one point zero zero one subsection three of the property and noted that the defendant failed to comply with that section and also failed to establish under solely because the appellant's failed to show or allegedly failed to show that the filing of the action was not in bad faith i would assert that the core got it wrong in the court inverted the burden of proof of a certain is no evidence in the record that the appellate filed the action in bad faith also the court used the wrong standard the there was no finding no discussion whatsoever that anything a post did we don't we don't apply the texas rules of civil procedure for that purpose in federal court but there as the lender they have a contractual right i think we're going to agree to disagree on that i would suggest to the court that attorney's fees were awarded in the matter of over sixteen thousand five hundred dollars in connection with proceedings that preceded  requires exclusion of his opinions of the attorney's fees requested or redacted from the fee statements provided by counsel is very limited ability to test the request that the fees were necessary and usually necessary at a reasonable section thirty eight point zero three of the texas civil practice attorneys code also requires a proof of customary attorney's fees which was not done some of the fees were awarded for time keepers who were not attorneys which requires a special showing with what evidence in the light most favorable to the appellants disregarding all contrary contrary evidence and enforces and giving the players the benefit of all reasonable inferences that their disputes are genuine  fact and the court should reverse the judgment and remand for trial there are other arguments raised in the briefs issue on how if you want a trial what would you get i think we would get an order saying something to the effect that s l s was not the mortgage service or the last stance of bill notice of foreclosure would be declared invalid to please the court for the relief that mr moore seeks in this appeal is relief that is not requested in the original pleadings it's not in the original complaint it was not in response to summary judgment the only thing that is in this in fact is a very simple case and a very simple appeal and the th circuit should affirm the trial court's summary judgment because one the summary judgment evidence fully supports summary judgment in this case and the legal authority fully supports summary judgment in this case and the marshes arguments in this case are fatally flawed the majority of the marshes brief here contains issues in allege causes of action that this court simply just cannot consider and as your honor pointed out the district court properly noted in footnote at the bottom of page three record on appeal and seventy seven dollars the only relief the marsha seek in the original complaint is declaratory relief asking that the court find that the statue limitations to foreclose expired and that the mortgage lien  there are no other issues for the trial court to consider there are no other issues for this court to consider on appeal mr marsh claimed to have asserted a cause of action for breach of contract to you  to the extent that and it is to the extent that there is a breach of contract claim that can be raised arguably through the facts section of the complaint that's the only place that we could see a breach of contract cause of action to the extent that that is there the only little box that that can be in is with respect to foreclosure notices that the marshals allege were not sent the summary judgment evidence proves that they were summary judgment evidence it's clear the trial court found that it was clear there was multiple exhibits well i think he's arguing breach of contract insofar as there was  renegotiation right and that allegation is not in the pleadings it's not in the complaint and the only thing that can be read into that complaint if you parse through the lines a little bit is a breach of contract based on lack of notice there is no interpretation of that original complaint which the original complaint is the live complaint there was no amended complaint at all in that case the only thing that you can read as as you parse through the lines on a breach of contract claim is a breach of contract based on lack of notice of the foreclosure notices a notice of default notice of intent to accelerate notice of acceleration notice of sale and there is nothing that can be read into the complaint for breach of contract for any other reason other than those notices that the marshes say they did not receive but again under texas law overseen is not necessary the mailbox rule applies in the texas property there are no formal causes of action against the op elisa's no breach of contract other than what we just talked about to the extent there is the claim it's only the lack of notice there are no allegations in the complaint it all related to the loan modification that is only raised in response to some of judgments only raised here on appeal but it is not in the complaint it is not part of the original lawsuit and frankly that's why it was not raised in the motion for summary judgment that the apple is filed because it's simply not part of the regional loss there are no allegations in the original complaint that specialized loan servicing is not a mortgage servicer or is not a mortgage servicer in connection with the martians loan there are no allegations in the complaint related to a show me the note theory which as i'm sure this court is aware under texas law texas record i think that is because the response to the motion for summary judgment raises all of these things that are not in the original complaint the original complaint is very narrow and it address e the summary judgment evidence if there is a breach of contract claim proves but the notices were in fact sent to the mailbox rule applies receipt is not necessary under texas law the allegation that the mortgagee accelerated the indebtedness multiple times between march two thousand and ten and june th two thousand and thirteen is with all  respect to the marshals meaningless when there are multiple instances during that time and thereafter where the mortgagee decelerated any previous exoneration during that four year period after those celebrations those instances of the celebration occurred in that four years statute of limitations for example when new notices of default were sent m j of the motion for summary judgment or the notices of default that show that any prior celebrations are void at that point because the notice is of the fault seek less than the total amount due these notice is well within the for your statue limitations as the date specified on the order and the business records affidavit proves that those notices of default the appellant's the marsh provide no evidence to rebut that the bank's documents regarding unilateral abandonment of acceleration are in any way invalid and the documentation and evidence of abandonment are is not germane to this appeal because it is not raised in the complaint this court and frankly the trial court cannot consider the issues pertaining to the loan modification because it's simply not part of the original complaint not address the motion for summary judgment for that reason it wasn't raised until response to summary judgment and then it's raised here on appeal that is not germane to this case it's not germane to the appeal the marshals admit that they receive notice from the mortgage servicer both from wells fargo saying we're no longer servicing this loan you'll ultimately send your payments to specialized loan servicing and the marshes admit that they received notice from specialized loan servicing that hey we're your new mortgage servicer the marshes want this court to adopt an unheard of proposition under texas law that the mortgage servicers for lack of a better word the welcome letter or hello letter must come directly from the mortgagee that's simply not the case there is no instance where a mortgage servicer has been held not a mortgage service r because the letter came from the mortgage servicer and not the investor or the mortgagee it's just an untenable position that the marshes take in this case if the marshes don't receive the letter they want this court to find any action the service or takes thereafter is void again that's simply not the case under texas law there is no legal authority to support these propositions at all even if there was the martians never raise this issue in the complaint and frankly they don't even fully address it in the motion for summary judgment adequately because there is no citation to any case law or any legal authority that supports that proposition with respect to the show me the no theory the only we're pretty familiar with that is yes judge that is not even raised in the complaint so that can't be addressed by this court the other issue i'd like to shift gears to is the request for attorney's fees and at the trial court is reviewed in this court for an abuse of discretion and as to the issue of this case was filed in bad faith by the martians for no other reason but to delay matters and to extend the time in the property after being in default for many many years so not only do we bring a bad that the affiant namely myself seeking attorneys fees has to be designated designated as an expert in the expert designation when motion for s the th circuit ruling in richardson versus wells fargo from two thousand and fourteen which i believe your honor authored these cases are identical or this case is identical to the issues raised in richardson here the only shift to that is that the marshes say that the lender the service are not entitled to attorneys fees because he was in bankruptcy and we can't collect the attorney's fees while he was in bankruptcy and then you're not to mention this default has been going on for nearly a decade the marshals have used bankruptcy this litigation and his appeal is nothing more than than  delay tactic and to increase the cost of litigation the loan documents specifically provide section nine of the deed of trust provides that the fees are collectible for two reasons protecting their interest in the property and protecting the lender's rights under the deed of trust and it says including its secured position in a bankruptcy proceeding so in that sense  had been continued to incur carrying costs sizable sums and attorney's fees for the bankruptcy for the litigation so see that with this appeal the briefing travel costs coming here from houston the marshes have continue to enjoy the benefits of the property without paying rent without paying mortgage payments without doing anything other than living there while he is a practicing attorney pursuing with a geisha and this appeal as i stated is nothing of the attorney's fees in excess of twenty seven thousand dollars thank you thank you petition states quote plaintiffs disputed s l s assertion that it is allegedly is the mortgage servicer in quotes allegedly representing the current mortgage the quotes referenced in their and the law is that if s l s is not the mortgage services under texas law it doesn't have the ability to do that they don't now then you would have to go back to the wells fargo wells you would have to bet that wells fargo that last thing with respect to the filing of the bankruptcy there's hope of evidence before the court and only of the court is the fact that the marches filed bankruptcy because the i r s was engaging