fundamental errors that were made in this case by the district the st one is in misapplying the rule fifty six standard for summary judgment and the nd one was in construing very important state law governing land right s our request today is that you reverse the summary judgment on either or both grounds but if you decide that there was no reason on this record for judge below to reach the legal question simply to reverse the summary judgment normally one would say reverse and remand for further consideration in light of the correct standard that we respectfully submit that we submitted a and they have the other side has put into their supplemental record a copy of the post judgment denial of our rule sixty two point one motion and at the very end of that in footnote twelve the district court stated that actually even if it's these new versions of the t c t which are subject of a separate motion we've made to you for judicial notice that even if the district court saw those it wouldn't accept them because it thinks that they're illegal and that's a little shocking to us we've explained in our reply memorandum the district court came up with that argument on its own wasn't suggested by p and c p and c has taken it up in the motion for judicial notice and we have responded to that employment out the registrars and their assistants are absolutely entitled to make memoranda on certificates of title and all they've done is make a memorial of the date on which they certify them getting to the rule fifty six dan and i'd like to talk about that because what we feel happened here is the age old and rock solid principle that you take the facts and you draw the reasonable inferences from them in favor of the nonmoving party was not followed the document the district court had before him or the four d transfer certificates of title and they had an issued date it didn't say issued and entered it said issued it happens that those dates were identical to the dates on which the very deeds were record the other fact that that was in the record is that there is a backlog it seems that the judge had trouble with us proving how long it was but it's irrelevant it was a a publicly known fact that was reciting multiple times in the o me a case that there is a backlog between issuance and entry so if someone presents to the district court a document that says when it was issued and someone that move on argues that's also the it was entered and we say wait a minute there is a backlog that you should take judicial notice of so they can't be the same date that's what you read what i understood from the record is that what you relied upon before the district court was a declaration that had been submitted in another case in my case and bar journal article and then us the district judge in this case to take judicial notice of those two items in the court declined rather than putting in direct evidence in your case t those little pretty concise statements we certainly were asking the court and we did orally to recognize the existence of the backlog generally not the specific declaration of that there was a statement in the only a case that we alluded to that came from a declaration four or five times when the legislature in reports that the court cited in the media said there's a backlog we have to fix it our point is that if you're just looking at this whole record and this fifty six dollars says or other materials this isn't doesn't have to be a sworn declaration i don't have to interfere with the ordinary functioning of a state court and the land registrar's office and hail them to come and explain their public record documents when the judge knows two things he knows admissible at trial it doesn't have to always be admissible in the form presented that is how i've read the cases the the idea is can this be proved and our point is that we're asking no your honor respectfully it would not be because the burden on the move on is to prove when it was entered if you have a document that says it was issued on a certain date and that's the date that the d recorded we know if there was a backlog of any length even one day we know that that couldn't be the day it was entered so they have failed in their movements burton to present the date of entry and we don't have any burden at declines you haven't come forward before the court ruled on the motion for such an what was before the court with the certified transfer certificate i understand that the court's point i'd make two points in response that actually the court didn't decline to take judicial notice the court didn't address that point it just skipped over it and what rule two hundred and one says is you must take judicial notice that's a that's a big deal so this is not like a throw away we rested on this st of all i make another point it's very important to make these folks on appearance he didn't argue what the judge decided they were moving for a complete summary judgment  conceded that we could get certain damages but they were trying to split it up and say you can only get certain damages under under this land court statute it only allows you to get your the value of your net equity is a very complicated argument and it's we refer refuted it but the point is they didn't have the nerve to ask for what the judge was doing which is to just throw the whole thing out but we come in and we know land court very well we deal with it all the time we know there's a backlog six judge the thing they've shown you is missing a key piece of information as to when it was entered and we told him that and we said you can know that they care if he says well i think it's his opinions as it's been issued and entered on the same day but what you asked him which was the court to do is take judicial notice of the declaration there my a case and the bar journal article about a backlog i didn't see any request british judicial notice before any ruling on summary judgment with respect to modified transfer certificates they're the same one all they're different in that there's a notation of a different date to the old ones no longer exists though when your public record is something different about them yes that is true the date is indicated is different and you have a declaration to explain what that means and in that declaration they you could have broad something to the court's attention and respectfully i don't read that declaration that way i think he said that they became they started the project in the summer after the army a case came down because the army a case highlights this problem that their records don't show you when they're entered so the office started to correct these but it actually says that the public could not view these documents with the new dates on them until december and eighteen that's my recollection and we established that to show why we couldn't have raised we couldn't have presented those i was looking online the week before the hearing and there was nothing it hadn't changed the courts i mean the land court registrar haven't altered what p and c had put it but we felt that it doesn't really matter because they're presenting something that's missing the information in there the move on and the court will be fair and follow rule fifty six and hold them to their burden because what they don't get to show when it was issued they have to show when it was entered there's no way there's no person in this state who will tell you honestly th documents whatever they look like were entered when they were issued they weren't and that is an inference that should have been drawn in our favor from the record that we presented because when you draw inferences you're entitled to know you don't just operate in a vacuum you have to think about like what the something really mean and what do we all d know as general knowledge when we have the supreme court of the state referring to the backlog citing that multiple times legislature has referred to the backlog and the judge of the land court in a learned article referring to the backlog the district judge if he's if the court is going to give us the inference from this record is going to say well i have to infer that issued doesn't mean entered his ruling says issued and entered on that day it did not happen there isn't that they can argue technicalities but it didn't happen and the purpose of interpreted things in our favor at the summary judgment level is to avoid this type of  result i'd like to reserve as much as i can but i do want to say that this judge this court the district court vaulted over the the question that we've been talking about to a really fundamental question of law there is a section in the statute that says nothing in this chapter shall be construed to deprive a point of a tort claim in the whole chapter it's black and white now how do you get past that i don't know but i respectfully submit that this panel could do what judge ferris's panel certify the legal question to the why supreme court this affects forty five percent of the land titles in this case and judge watson is saying you get no tort rights if you're wrongfully foreclosed the backlog now is four years but you know in the sixty's and sevent it was less than a week and hopefully one day when the funds are there the backlog will be back down to a week and what judge this district court's ruling says is if that happens you'll have five days to bring a money damages claim against the wrongfully foreclosing entity and the land court statute in section eighty one dollars eighty two cents makes clear that if your land court owner you're entitled the same privileges and rights as a regular system owner you shouldn't be thrown out there is no reason to protect title by saying you can't sue a bankrupt damages that doesn't once the title sort of certified it's rock solid wrapped in teflon it can't be touched so big deal if we sue them for damages mr smith or mr jones who now has the property it's not going to affect them there's no reason to throw the baby of damages out with the bathwater of title thank you always or the rest  missing in the yomi ok so the in your case is actually a blueprint of what could be missing to show that something is not a t c t the t c t as we put it and were signed by the assistant registrar they described the property they listed the encumbrances they had a date they indicated that the prior to c t was cancelled that's the end of the story we met our burden inferi if they had put on some evidence that would be a different story they put in no evidence they speculated they mused about a backlog in general that there might be a backlog for one thing other cases such as the supreme court's ames case which is the definitive case on the subject t c t in that case which was binding inconclusive and bar the lawsuit was issued was entered on the same day that the deed was issued so there was in theory a backlog at that time too but it didn't the process had started the planners made no effort to go to the land or to ask them what was going on they just speculated there's a backlog therefore it's impossible for the state to be the entry date they could have gotten the same type of declaration that they ultimately got that's the reason that the district court later on denied their motion to reconsider they had just done nothing to put together any evidence in this case so c met its burden there was nothing for the district court to look at on the other side of the equation the materials of which they sought judicial notice during the summary judgment proceeding they didn't even really ask for judicial notice  judge beatty noted it wasn't even the declaration that was cited in a my it was a sentence from the in my opinion talking about the declaration and then a land court article that's not evidence and again it was speculation because they made no effort to tie it into this case and they easily could have they also were seeking judicial notice for the truth of the contents because they wanted to prove that the entry that the issue date on the two cities that definitely the reason this such additional notice here judicial notice cannot be taken the facts that are subject to reasonable dispute here we had no opportunity at any time to depose the witness to subpoena any evidence to try to find out exactly the nature of this backlog problem it was purely speculation and contract claim there's a sentence in that statute that says that the contract claim will not take away any tort action but it presumes that a tort action otherwise exists which it does not in this  case we did not go over there were course for judicial notice on appeal but again those more recent t c t's are irrelevant here the judgment of been entered the the district court had exercised its discretion not to consider the materials because of their complete lack of diligence and as for the damages claim this go back to this shoot and entry yes they caught a me so we know what the with respect to a completed t c t are used interchangeably even in the in my opinion where the ultimate decision in that case is that there was no t c t even though there had been a number issued it still refers to the issu in a context that makes it clear that issuance and entry are the same thing again there may have been a backlog but until the a maya decision came out a t c t that looked exactly like the ones that of dates many years later excuse me many years after the dates that it's printed on the t c t came up at the end of two thousand and eighteen and as to how that affects that's kind of an unexplored issue because it just came there is an issue like that it's arisen since this case and it's a question for another case even though they say they're only seeking damages it requires the same allegations and the same proof as a case that is trying to get the property back the basic allegation is something was wrong full in the foreclosure process the same action it's the same allegations and proof no matter what the remedy you're seeking as the district court noted the remedy of damages is frequently referred to as an alternative or equivalent to getting the title back that means you have to prove th same thing you just got a different remedy at the end of the day so the same time are should apply the same legislative policy of finality and certainty of a t c t it isn't exactly the same a fact if you're just talking about  damages claim even if the subsequent owner still is going to have title without any interference from challenger there is still uncertainty there's still a core claim that the transaction that led to them getting the title was illegal or wrongful a rd the legislature and plain language of the statute they could easily have carved out damages claims just made explicit in the statute that the only thing that's comment on what kind of remedy and the legislature could have been explicit the damages claims were preserved and presumable who presumably the legislature would have been aware that by imposing that time bar that was going to a point he's saying it could not have been entered on the date it was issued that they couldn't be the same date and the record reflects only one of the two dates so there's a problem and he's arguing we're not asking for the property back we want to go against the bank for cities in this case and they could easily they easily could have gotten evidence in the sun during the summary judgment proceedings to cast real doubt on that they could have gotten the equivalent of the same declaration from the assistant registrar that they ultimately did which which created that issue but that was not evident sure issue in the record or before the just record at the time of summary judgment so i ask you and that so based on these other cases a the end of two thousand and eighteen there apparently is a way we don't know much about it because this was never explored by anyone through discovery because it didn't come up until judgment was entered but in that declaration of the assistant registrar that's w motion for judicial notice which are separate reasons we don't believe that's a proper subject of judicial notice in this court either but if you look at that and you take it as true it suggests that the assistant registrar's office today has some way to look at an older t c t and determine that it actually was entered on some other date other than the one step to the front we don't know anything about that that it just wasn't developed in this case and it came up after judgment so don't know the answer to that as to the nd part of judge harris's question on the damages they are saying yes they are asking at least on appeal to just go after the bank for damages that's not what they asked for in their complaint their complaint implicates the return of title for at least some apps class members  but regardless as i was saying that a claim for damages based on the fundamental assumption that the foreclosure was invalid is just as much an impeachment of a foreclosure as a claim trying to get the title back so it's a distinction without a difference at least in this case we definitely take issue with this idea that we were speculating about a backlog when you're citing a supreme court that discusses it at length and legislative enact means that reciting it we're not speculating that there is a bank or backlog what they're saying is well you're speculating about whether it affected these these particular instruments but they have four instruments they're trying to tell the district court that all four of them somehow didn't get caught up in the backlog every single one of them different months somehow for just these for the registrar dropped what they were doing and working on the backlog and jumped in and certify these on the day or as a big deal when the court granted summary judgment it had to look at not have been this is a signal that not have been this done the same day you know let's say the somebody is behind two years but on one day it may be the same  because the complaints were filed years later we're not talking about a week or a few days here so what we have to do then is without any record evidence decide that they weren't entered before the time that you a complaint we don't know them we don't know how much time that is we don't have to decide that on this record we actually do know now because of the judicial notice request and we have the well so you don't need but the district court didn't have that information and we don't have it either because we haven't granted your motion for judicial notice yet we may or may not but we haven't done that so you are what i feel like you're doing is certainly we're arguing for us to supplement the record on appeal we are not we don't need to win do that to win and the reason is is that it's about the burden of proof and drawing inferences from the record that you have they have there are two points here they have a burden as a move on to establish the entry date they present a document that is inherently ambiguous because it says issued and it doesn't say entry they said judge it was entered the same day and we're like how could that be possible there is a backlog once you accept the existence of a backlog of any link they have failed in their burden to prove when it entered that's what they have to prove as move on when it's remanded we can argue how long the backlog was and whether these dates were before or after we filed suit but we did file suit before the dates that are shown in the ones that you have so it would be an empty exercise but i don't i'll have to go back and let them try again with a clear record but on the record this judge had we were speculating we're saying they haven't shown you this document is ambiguous intrinsically you have to draw that i think you have you in our